Lord Tomlinson: My Lords, does my noble friend agree that one of the important lessons that came from the Saif Sareea exercise was that tanks, for example, that operated extremely well on the plains of Germany where troops were training were less than useful when they got into sandy, desert conditions? We have got to have much more appropriate climatic and ground conditions for some of our training than that which is available in Germany and dates from a time when we saw the enemy as being somewhat different from what we see today.

Lord Howarth of Newport: My Lords, is there continuing validity in the Northcote-Trevelyan conception of a higher Civil Service staffed by generalists formed by a broad but rigorous education in the humanities and characterised by independence of mind and a commitment to the public domain?

Lord Northbourne: asked Her Majesty's Government:
	Whether details of the rights and responsibilities of young people referred to in their Respect Action Plan are clearly set out in the citizenship curriculum taught to young people in schools.

Lord Adonis: My Lords, I agree with the noble Lord, which is why we place such emphasis on both citizenship education and PSHE in our schools. As he knows, citizenship education became compulsory in schools three years ago—there was no mandatory requirement for it until then—and we have significantly strengthened support for PSHE in schools in recent years, including through schemes of work, a substantial programme of training PSHE teachers, and the department is also just about to launch and fund a subject association for PSHE teachers. We recognise the importance of all those strands of work.

Lord Campbell of Alloway: rose to call attention to the advice and guidance given to the Director of Army Legal Services and the Army Prosecuting Authority by the Attorney-General under his supervisory function; and to move for Papers.
	My Lords, this Motion affords, noble Lords may think, a much-needed opportunity for critical examination of the process under which resort to trial under the civil jurisdiction is granted by the Attorney-General. I raise this subject without in any way or in any sense calling into question personal integrity in the implementation of that process.
	I acknowledge with gratitude the informal advice of noble and gallant Lords and other noble Lords with relevant expertise, which I do not possess. They have provided advice on the legitimate expectation as to mode of trial by court martial for an offence committed on active service when peace-keeping in aid of a civil power—a matter, addressed by this Motion, of considerable concern to the Armed Forces.
	As to the concern of our Armed Forces, of course I defer to whatever may be said by the noble and gallant Lord, Lord Bramall, the noble Lord, Lord Garden, who has spoken in the interests of servicemen and women, and the noble Lord, Lord Thomas of Gresford, who has the conduct of relevant cases which no one else in this Chamber has had.
	To alleviate the concern of the Armed Forces and to safeguard the legitimate expectation as to mode of trial, it is proposed that application should be made by the Attorney-General for grant of resort to the civil jurisdiction to the High Court for adjudication according to law, and that the extant process of grant ex cathedra as an exercise of absolute discretion, not subject to review in the courts, be foreclosed upon.
	Within this process, it is complicit that no notice, no reasons and no opportunity for representation are given. This is exemplified by a letter sent by the director of Army Legal Services to the noble and learned Lord the Attorney-General on 31 March 2004, seeking resort to the civil jurisdiction, which was granted:
	"It is important that I should mention that Trooper Williams has not been informed that this matter has been referred to the Attorney-General, and the Army would be extremity grateful, if any further action is contemplated, to be first notified so that appropriate steps are taken to notify Williams".
	He was awakened in his barrack room, to be told that he was to be tried for murder and that his name would be in the papers the next day. The charge against Trooper Williams was dismissed by the commanding officers on MoD advice, but the director of Army Legal Services disagreed with the advice. If it had been referred to a higher authority, as was the wish of the director of Army Legal Services, it would not have been dismissed—hence the resort to civil jurisdiction in the end.
	Is not trial under the civil jurisdiction only appropriate and in the public interest where there are exceptional circumstances, such as someone frustrating due investigation, perverting the course of justice, assaulting civilians or prisoners and so forth? This should surely be a matter for overt decision according to law—not something within the closet of discretion, which cannot be examined and is, on the face of it, contrary to law. One must distinguish between what is in the public interest in this context and what is in the political interests of the Government. This decision is now made by the Attorney-General, but surely it should be made by the courts. Such is the situation which this Motion seeks to address.
	At regular meetings attended by the noble and learned Lord the Attorney-General, the director of Army Legal Services and the Army Prosecuting Authority, trial under the civil jurisdiction—not under court martial—is advised and, in fact, directed by the Attorney-General. It is not known at whose instigation this is, but documents appear to confirm it is at the instigation of the director of Army Legal Services—not the Attorney-General acting ex officio. But, of course, one does not know. This symbiotic, close working relationship—as I have said, within the closet of discretion—is without the law. It is unfair. It bears no kinship with justice to servicemen and women, or the regiment, and deprives one of any means of objection.
	The High Court would take note of the legal expectation as to trial—which is manifest in the Armed Forces Bill, but I am not dealing with that—and that someone who sits in judgment should have some relevant experience of the lethal circumstances in which this occurred. Applications would only be granted by the High Court if, in its view, they were in the public interest and not the political interests of the Government. They would only be granted if, on the face of the evidence, it was apparent that, on due legal direction, there was a reasonable prospect of securing conviction. That is a question of the quality of the evidence, which I will come to before I conclude.
	If the High Court granted the application, it would give directions as to trial, directions for the avoidance of delay and, as a result, the concerns of the Armed Forces would be wholly addressed. The Armed Forces would naturally be wholly content that the decision as to transfer in this way, or either of these ways, was within the jurisdiction of the High Court.
	The quality of evidence is of some importance. The Court of Appeal quite recently—I do not go in for quoting from cases, but if anyone wants to know, it is R (on the application of Al-Skeini and others) v the Secretary of State for Defence—adverted to the lack of resources for the RMP and the want of training as to proper investigation to get the quality of the evidence, relating this, admittedly, to Iraq. The Court of Appeal also said that investigation should be:
	"wholly independent of the chain of command",
	and that the first report from the RMP should be made to the Army Prosecuting Authority. A series of trials after undue, wholly unjustifiable, delay have collapsed on flawed evidence which could not properly support conviction. While such a situation remains, and is not addressed, retention is hardly encouraged.
	On 15 December 2005, my noble friend Lord Kingsland asked whether these powers as to mode of trial had been exercised by any previous Attorney-General, and whether there was any legal or constitutional basis for such exercise. My noble friend rightly asserted that, in default of an answer, there was no such power. These questions were not answered, and remain unanswered today. No other aspect of the supervisory role of the Attorney-General is being called into question. This sole one, however, is. I beg to move for Papers.

Lord Moonie: My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for instigating this debate and for his thought-provoking introduction to a very important subject. I am grateful for the chance to contribute to the debate and shall try to place it in context.
	The changing nature of war is now accepted as fact. I am sure that any noble Lord with an interest in military affairs will have read Sir Rupert Smith's recent book The Utility of Force: The Art of War in the Modern World, in which he describes "war among the people". I shall quote from that book:
	"Because of the nature of war among the people, the use of force is usually initiated at a relatively low level. It is the citizen and soldier who are affected, not just leaders and commanders. All parties therefore need to know where they stand . . . Our servicemen need to know too: it is they who are held accountable in law when matters are considered after the event. International humanitarian law (IHL), most especially the Geneva conventions and the laws of war, is supposed to be a standard text for all soldiers and officers in the military forces of those states who are signatories . . . The soldier is being held accountable to the law for his actions in these campaigns, and it behoves those who send him to ensure he has an adequate understand of the law and his position in relation to it".
	It also surely behoves us to ensure that our servicemen and women are treated with justice when they are called to account, and that that justice is conducted in an appropriate manner.
	The behaviour of soldiers nowadays is scrutinised as never before. The presence of the media alongside us as we conduct our campaigns has to be taken into account, as of course must the need to conform to international standards of behaviour. That requirement places a heavy burden of responsibility on officers and NCOs in the chain of command to ensure that our functions are exercised responsibly. Sadly, it appears to have failed on several occasions.
	In another place, I was responsible for getting some of the legislation that applies to what we are talking about today on to the statute book, in particular the Armed Forces Discipline Act 2000, which I took through Committee and spent many a weary hour discussing with Members on all sides of the House. In addition, the Human Rights Act 1998, the Armed Forces Act 2001 and the current Bill have to be taken into account.
	As a lay person, the requirements appear to me quite clear: first, a clear understanding of the law, and robust and sensible rules of engagement; secondly, the proper training of personnel, focused on how to behave among civilians. Our experience in Northern Ireland and the Balkans is excellent, but sadly it is not enough. That experience must be passed on to all who are involved in operations in a civilian context. Thirdly, we need a sound, reliable system for the rigorous investigation of alleged offences and the prosecution of offenders. Fourthly, we need to recognise that military action is only one part of a highly complex solution to a problem. The failure of the occupying powers in Iraq, particularly the USA, to recognise this has placed a very serious—some would say intolerable—burden on our forces as they attempt to keep order in that country.
	In investigation, the chain of command clearly has primary responsibility, as has the military police. I should ask in passing, is there not a much greater role for the Ministry of Defence police force or the secondment of experienced police officers from civilian police forces as back-up to the investigating authorities when looking at serious offences?
	I shall now turn to the role of the Attorney-General. Over the past eight years, we have done much to protect the rights of our service people and to ensure that they are given a fair trial. That was the point of the Armed Forces Discipline Act 2000. After challenge in the European Court, it was recognised that our system of justice under courts martial and summary procedures was inadequate to ensure that people were treated fairly. We attempted to redress that balance. The Act was inadequate, as primary legislation often is, and has since had to be supplemented by secondary legislation to take further account of judgments that have been made. But it is probably now a robust way to ensure that our people are properly represented and are given justice when they are brought before a court martial or dealt with summarily. It is also essential that we comply with the standards of justice expected of us as supporters of the International Criminal Court and the legislation pertaining to it. It would surely be reprehensible of us to have taken a major part in setting up that court and then to say that its provisions should not apply to our own people. In order to ensure that our people are treated under the British system, we must ensure that that system complies with the procedures of the ICC. We must keep that constantly in mind to ensure that we can administer the system on our own.
	I do not believe that courts martial are an appropriate venue for offences under civil/criminal law. The standard of proof required and the right to trial by jury provide, in my lay opinion, greater safeguards for the accused than there might be in a court martial, even given the changes that we have made. I can give only anecdotal evidence to support that, but more than one senior military officer has said to me that the purpose of summary procedures, and often courts martial, is to punish the guilty, not to administer justice impartially.

Lord Moonie: My Lords, I agree with the noble Earl, but that is why in turn we have had to bring in additional safeguards to ensure that justice is administered, not the opinion of the commanding officer.
	Where an offence has been committed under service law, it is entirely appropriate that the military system of justice should prevail. Under the criminal code, particularly for serious offences, that is not enough. The prosecuting authority should be independent of the chain of command to satisfy the requirement that justice be done and that the guilty pays for his crimes, and to ensure that those charged are treated fairly and in compliance with international law. The Attorney-General is the appropriate final arbiter in determining whether charges should be brought and under which system the accused should be tried. As a senior law officer of the government, he is responsible and accountable for the administration of that part of the system of justice in our country. There should be no other final arbiter of which cases are brought to trial and in which type of court.
	On the other hand, the noble Lord, Lord Campbell, advanced a strong and passionate case for a further safeguard to be introduced. My concern would be that that would diminish the authority of the Attorney-General and perhaps weaken our level of compliance with international law. However, the noble Lord's point is worthy of serious consideration and I have no doubt that we shall return to the matter during our discussions on the Armed Forces Bill later this Session.

Lord Garden: My Lords, I thank the noble Lord, Lord Campbell of Alloway, for the opportunity that this debate again gives us to consider the legal pressures under which our military have to operate. The requirement to carry out military operations within the bounds of national and international law is not new. We have covered aspects of this topic in a number of exchanges over the past year in your Lordships' House, most particularly in the debate on the chain of command on 14 July 2005. In that debate, the importance of the issue was reinforced by every noble and gallant Lord who spoke of his concerns. Yet nothing that I heard in that debate, or have seen subsequently, has changed the view that I took then: if we are to use our Armed Forces as a force for good, we must ensure that they operate at all times within the law. That means that we need a process to investigate allegations that the law has been broken and, if sufficient evidence of wrongdoing is found, due process must follow.
	We are debating this issue during a bad week for public perception of the British Army. I do not intend to comment on the particular case, but it underlines the importance of a reliable legal process to investigate such allegations.
	On the narrow question that is the subject of this debate, I have read the uncorrected evidence given to the Armed Force Bill Committee in the other place on 26 January 2006 by the Judge Advocate General and the three service prosecuting authorities. Major General David Howell, the current Army Prosecuting Authority, was asked directly by the committee about his relationship with the Attorney-General. He said—and I quote from the uncorrected evidence:
	"We take the view that he has the right to be consulted on major cases. We certainly do not give to him or even draw his attention to every case. We have had 1,100 cases over the past few years, and that would be manifestly absurd. We do consult him on major cases. One matter I must make absolutely clear, and I am sure this goes for my two colleagues as well, we have to accept that the final decision on whether to Court Martial someone ultimately is our decision; it is not the Attorney's or anybody else's".
	He went on to say:
	"There has been no suggestion from anyone that either me or the leading counsel involved should take decisions for political or any other reason".
	When pressed as to whether the Attorney-General,
	"could refer back to you and say, in his role as superintendent, you did not refer this one to me, but you should have done",
	the General said:
	"He could criticise me if he felt that I had not consulted him properly as I should have done but I do not believe that has happened so far".
	The transcript from the subsequent session of that committee on 9 February 2006 makes it clear that General Sir Michael Jackson, the Chief of the General Staff, strongly endorses the comments made by Major General Howell. These Benches welcome those assurances and do not question them for a moment. The procedures seem entirely appropriate and appear to have been operated correctly.
	I lack the legal expertise of many noble Lords who will speak in the debate, but I know that the military are very conscious of the rules and of the result if they break them. Later this year we shall debate the Armed Forces Bill, which the committee discussed, which will bring together the three service discipline Acts. That Bill is a salutary reminder of the legal framework by which the military are constrained. We expect a great deal from our Armed Forces, not just a sense of duty which extends to risking their lives in the service of the country, but we place extra legal restrictions on their actions which civilians do not have. That puts on us, as legislators, an extra onus and on the Government, as employers, an extra burden towards every individual in the Armed Forces. We expect them to respect the rule of law, but we had better be sure that we do all in our power to ensure that they have just treatment, and it is seen to be just, when they face allegations against themselves.
	That means that we must not stint on the resources that we allocate to investigating complaints. The Military Police, like all parts of the services, suffer from overstretch. It is a specialist activity, which is being much used. I heard the suggestions from the noble Lord, Lord Moonie, about places that one might look, although such resources are fairly few and far between. We must have enough investigation resources to provide a speedy response in order to decide whether there is a case to answer. Justice means understanding the operational circumstances under which alleged offences have taken place. When we look at the Armed Forces Bill, the question of ensuring that the military chain of command is safeguarded will almost certainly arise, and we shall support amendments which ensure that that principle is maintained. There have been administrative problems which have led to delays, and we have discussed the Trooper Williams case, again raised by the noble Lord, Lord Campbell. There has been a lack of duty of care. But these mistakes happen, and we should not throw away procedures because of errors of implementation. We need to learn from those mistakes. We need to know that the Ministry of Defence is learning from those mistakes and that, even in these financially straitened times, the necessary resources will be made available to correct problems in the delivery of justice.
	There is one other aspect which I would wish to raise, given that we have the noble and learned Lord the Attorney-General to answer this debate on a military topic. I am sure he would agree it is important that individual service men and women are always clear on what their rules of engagement are. Indeed, the noble Lord, Lord Moonie, talked about the need for robust and clear rules of engagement. Unlike civilians, the laws that affect servicemen can change depending on the nature of the task. On a humanitarian relief operation, say after an earthquake, they are not expected to use lethal force. On an operation in support of a civil power, they will be working broadly to the same rules as the civil security forces. But in a more old-fashioned fighting conflict, they are authorised to use lethal force within the laws of war. These distinctions are important and are translated into direct instructions to each service man and woman. We heard from the noble Earl, Lord Attlee, in the debate on 12 May 2004, that he received no training on the rules of engagement when he deployed on Op TELIC.

Lord Bramall: My Lords, I too am deeply grateful to the noble Lord, Lord Campbell of Alloway, for raising this important question, as, indeed, I am for all the times that he very helpfully takes up the cudgels on behalf of the Armed Forces of the Crown.
	On this particular issue, there has been, as the noble Lord, Lord Campbell of Alloway, said, considerable concern in the Armed Forces that the military justice system in the combat zone in a war-like environment, be it peace enforcement, counter-insurgency or whatever, has not worked as well as it should have. The noble and learned Lord the Attorney-General's supervisory role over the military prosecuting authority is clearly relevant in the consideration of all this.
	No responsible military man would ever dispute that if service men or women commit a crime they must be punished. The Attorney-General made that very point in your Lordships' House when he last spoke on the subject. But the law cannot be dispensed in a vacuum. The noble Lord, Lord Moonie, pointed out that the climate of conflict has changed considerably recently. The key question that must be asked and resolved is, in a combat zone, in the middle of a battle, what exactly constitutes a criminal offence? It is certainly not, by itself, the act of killing or wounding, which may be exactly what the fighting man is there to do. It has to depend on the circumstances prevailing at the time, including the tempo of operations; the perception of the threat; the rules of engagement—which have importantly been referred to several times already—if applicable; and the good faith of those involved. The vital follow-up question is: who then decides whether, in the light of those circumstances, there is a prima facie case to answer and at what level is that decision made?
	I am not referring to the rare, I hope, but most unfortunate cases of abuse or assault and battery about which we have recently been reminded. They are entirely different because they are behind the firing line and out of the battle.
	I ask those questions because, in cases involving the military justice system that appear to have gone wrong because either prosecutions have tardily collapsed or there have been inordinate delays in bringing anyone to justice—both of which, however rare, are potential miscarriages of justice—it appears that crucial decisions have been taken far removed from the scene of the action and largely out of touch with the operational circumstances prevailing. In all the cases that I have in mind, some of which have already been mentioned, for one reason or another the noble and learned Lord the Attorney-General had got himself involved.
	I wish to be constructive and not dwell on past mistakes, because I firmly believe that the noble and learned Lord believes in the stand-alone military command justice system. I therefore hope that he will use his supervisory role less, as the noble Lord, Lord Campbell of Alloway, implied, to conjure up reasons to take the investigation and prosecution away from the military prosecuting authority and much more to ensure that the military system is working fairly, efficiently and effectively and has his full support.
	To meet the criteria—no doubt noble Lords will return to this when the new Armed Forces Bill comes before your Lordships' House shortly—in all matters involving a serious criminal charge, there should be an early and properly professional investigation by military police. If it is not professional enough, it should be made as professional as it possibly can. It should be fully conversant with the military circumstances prevailing. The investigation should be sent to the military prosecuting authority through, or with copies to, the chain of command—in the case of the Army, at one-star or two-star level—who can ensure that the military prosecuting authority is conversant with the military circumstances prevailing at the time of the incident.
	It would then be up to the military prosecuting authority to make an independent judgment as to whether a prima facie case to prosecute exists. That should then be handled—again, this will come up when we discuss the Armed Forces Bill—by a court martial composed of operationally experienced officers or, in some cases, warrant officers. That will have to be looked at again carefully when the Bill comes before your Lordships' House, as a standing court is being proposed. Anything that does not come under the heading of a serious criminal offence should be dealt with initially by the commanding officer, both because of the necessity for speed in justice and because of the need to maintain the authority of the chain of command who, with proper front-line legal advice, could either deal with the case summarily, were that is in his powers, and dismiss the charge, or refer it for a court martial through the military prosecuting authority. The whole process should be completed in a reasonable period, which should be far shorter than the regrettable two to three years that have recently occurred. That is terribly important.
	If we can achieve those things and keep the chain of command in contact with the military justice system, we will have a system that not only safeguards the good name of the Armed Forces for decent behaviour but keep the confidence of those committed to combat situations, who often have to do their duty under the most difficult circumstances.

Lord Lyell of Markyate: My Lords, I, too, add my thanks to the noble Lord, Lord Campbell of Alloway, for introducing this debate today and enabling us to continue to consider the role of the Attorney-General and of the prosecuting authorities in the presentation of this kind of case—the investigation, the supervision, the careful superintendence of the approach of the prosecuting authorities, carrying that right through to trial.
	I want to draw on lessons which I believe can be learnt from the recent case of the Crown against Corporal Evans and others, which was decided by Judge Advocate General Blackett in a careful judgment to which I want to refer, because I believe that serious lessons can be learnt about the proper implementation of the Code for Crown Prosecutors. I would be grateful if, at the end of this debate, the Attorney-General would take this matter away to study carefully whether that code was indeed properly implemented and let the House know either today, if he is in a position to do so, or later, perhaps through a letter, what his findings are.
	When I raised this matter in a Starred Question the other day, the noble and learned Lord the Attorney-General reminded the House, perfectly accurately, that the Judge Advocate General had said that he made no criticism of the prosecution or the Army Prosecuting Authority,
	"even though I have directed verdicts of Not Guilty at this stage Where on the face of the papers presented by the investigators a serious crime appears to have been committed it is perfectly proper to take the matter to trial, and in this case the prosecution team have presented their case properly and objectively".
	Of course, I was not there and I hasten to say that it is no part of my speech today to criticise those final words:
	"in this case the prosecution team have presented their case properly and objectively".
	I think that they did that. Where a bigger question arises, which cannot really be answered by the Judge Advocate General, is when he states:
	"Where on the face of the papers presented by the investigators a serious crime appears to have been committed it is perfectly proper to take the matter to trial".
	Those words are not sufficient. They may be correct, but they are not sufficient in the context of the Code for Crown Prosecutors.
	The Code for Crown Prosecutors is a vital step in the administration of justice. It is very important that no one should be brought to trial unless there is sufficient reliable, credible evidence to give rise to a realistic prospect of conviction. That is because prosecutors are in a very strong position to seek to judge the rights and wrongs of the case and may bring forth the case on spec—one goes back to early days when police officers sometimes said, "I think that this matter should be brought before the courts". The code makes it perfectly clear that a case should be brought before the court only if there is a realistic prospect of conviction on the reliable, credible evidence seemingly available at the time. Of course, that does not mean they must judge the evidence completely, but they must do their best to test it. That is made perfectly clear by paragraphs 5.4f and 5.5 of the Code for Crown Prosecutors. Paragraph 5.5 states:
	"Crown Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding that there is a realistic prospect of conviction".
	Paragraph 5.4f states:
	"Are there concerns about the accuracy or credibility of a witness in the case?".
	Looking at the findings made by the Judge Advocate General in this case, I believe there really ought to have been concerns about the accuracy and credibility of the evidence. First, there were three female witnesses. Very quickly it came out at the trial that those female witnesses had deliberately made up their evidence in order to obtain compensation, and that serious cases of conspiracy to pervert the course of justice might have to be considered. Turning then to the three Iraqis who were stopped and allegedly seriously beaten up by the Army, in the view of the Judge Advocate General it appeared that when tested, it was plain that their evidence had been so grossly exaggerated that it was, to quote him,
	"too inherently weak or vague for any sensible person to rely on it".
	It may be the case that all that could only have come out at trial, but such is the strength of the words of the Judge Advocate General and so short was the period during which the alleged beating was supposed to have taken place—the witnesses said that it had gone on for an hour but, as the Judge Advocate General said, if anything like that had happened, they would have been beaten to a pulp—that one really wonders whether the investigating authorities and the prosecuting authorities supervising them did look carefully enough at the strength of the evidence.
	When one is prosecuting and applying the code, it is absolutely essential to lean neither forwards nor backwards. The fact that it may be in the public interest to prosecute—and it would be in the public interest to prosecute in a case like this if the evidence were sufficient; there is no doubt about that—cannot override the need for sufficient credible and reliable evidence. That matter, as I have said, has to be looked at dispassionately. It is one of the safeguards for the administration of justice and one of the safeguards for the citizen. Therefore I ask the Attorney-General to go back to this case and look at it very carefully to see whether he does think that the prosecuting authorities fulfilled their role at every stage. It is a continuing duty which runs through from the point at which the Army Legal Services look into what investigations have been carried out by the Royal Military Police—the judge criticised those investigations as "inadequate"—to the members of the independent Bar. They have a duty, in consultation with the Army Legal Services, to continue to review these matters to see whether a case has properly been brought to court. I am not in a position to reach a conclusion in this case, but the noble and learned Lord is and it would be very interesting to hear what he has to say.
	I want to add one further point which causes me some concern in this area. I noticed in the latest annual report from the Director of Public Prosecutions that there now seem to be two tests for the Code for Crown Prosecutors: the full test and what is called the "reasonable suspicion" test. The Attorney-General may be able to say a word about that in his response to the debate. My reading of the test of reasonable suspicion is that it is not clear how it operates, it is not clear whether it is intended to change the law in any way—although it seems to indicate that it is not—and it is not clear that someone really could be charged and held on reasonable suspicion for any longer than the four days that are permitted under the law. Some clarification of this point would be welcome.
	One of the reasons that it would be welcome in the context of this debate is that the way in which prosecutors prosecute depends very much on the signal sent out from the top. The Attorney-General is the top and perhaps he could look at the signal which it seems is being sent out in this area.

Lord Truscott: My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for introducing this important debate. He has had a long and distinguished legal career, he served with the British Expeditionary Force in the Second World War and he was incarcerated in Colditz. Your Lordships will always be interested to hear whatever he has to say on any subject, and today is no exception. As the noble Lord demonstrated, he has given us much food for thought, and I am sure that my noble and learned friend the Attorney-General will respond to his proposals.
	Unlike the noble Lord, Lord Campbell of Alloway, I have not studied the law. I have, however, studied history. When I think of the 300 Spartans under King Leonidas as they stood against over 40,000 Persians at Thermopylae in ancient Greece, it is probably a safe bet to assume that the forebodings of court martial were not uppermost in their thoughts. Even the well-disciplined Roman army had scant regard for the human rights of their enemies, something that Queen Boudicea, or Boudica if you prefer, paid back in spades when she sacked two Roman cities here in the 1st century.
	War began to change its nature in the Middle Ages when the fathers of the Christian Church, from St Augustine onwards, began to teach a doctrine of just war, which required soldiers to spare women and children, to accept the surrender of enemies who had dropped their weapons, and to accept the inviolability of inhabited places where resistance was not offered.
	By the early 20th century, both military discipline and the treatment of civilians and non-combatants had changed irrevocably. The First World War saw relatively few crimes which could be described as "war crimes", despite the appalling bloodshed of that conflict. But in 1919, following the Amritsar riots in the Punjab, 379 unarmed Indians were massacred on the orders of a British officer, General Dyer. The subsequent government commission of inquiry severely censured Dyer and he was required to resign his commission.
	In the Second World War, noble Lords may recall that US General George Smith Patton was severely reprimanded for assaulting one of his own soldiers, and of course by then the treatment of prisoners of war was governed by the Geneva Convention. The UK ratified the European Convention on Human Rights without reservation in 1951. The primary purpose of Article 6 is to ensure a fair trial for the individual.
	In more recent history, we have had our own experiences in Northern Ireland, including the Private Clegg case and, before that, the Bloody Sunday shootings. As my noble friend Lord Moonie indicated, and he has a great deal of experience in this area, it has now long been the case that British soldiers and servicemen have been accountable for their behaviour towards civilians and non-combatants, especially where lethal force has been used. None of this is new. Service personnel were investigated for alleged crimes in the Falklands and Bosnia campaigns. Your Lordships know only too well that our Armed Forces face extremely testing conditions in Iraq and Afghanistan—the latter was mentioned by the noble Lord, Lord Garden—where the threat of roadside bombs and suicide bombers is ever present. British servicemen and women carry out their duties with tremendous courage and professionalism.
	If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding. Members of the Armed Forces face daily threats and stresses that most of us in this country thankfully will never have to confront. But where there is wilful mistreatment or the reckless taking of innocent lives, British soldiers must be held to account. I believe that the contribution of the noble Lord, Lord Garden, would support that view, as would that of the noble and gallant Lord, Lord Bramall. The British public, world opinion and the vast majority of Her Majesty's Armed Forces would expect no less. As General Sir Mike Jackson, head of the British Army, said:
	"There are those opine that there should be no prosecution in any circumstances whatever because the (soldiers) are doing their duty. I cannot agree. The rule of law is the bedrock of this country. The absence of the rule of law led to the situation for which intervention was made in the first place".
	He went on to accuse those who criticised the prosecutions of making,
	"outrageous slurs on the integrity and character",
	of Army investigators, and added:
	"It is a calumny to imply that people are dancing to a political tune".
	The noble Lord, Lord Garden, quoted Major-General Howell's similar remarks.
	We should be careful not to cast aspersions on the integrity of those who have made the judgment to prosecute even though we may disagree with those decisions. We can, however, unite to express concern about the inordinate delay in bringing prosecutions in some of those cases in the first place, a point made by the noble and gallant Lord, Lord Bramall. I hope my noble and learned friend the Attorney-General will reply to this point in his summing up.
	On the current relationship between the Law Officers and the service prosecuting authorities, my understanding is that the Attorney-General answers to Parliament for the prosecution decisions and overall policies of the prosecuting authorities. The Army Prosecuting Authority is subject to the general superintendence of the Attorney-General, a point already mentioned today. He is not responsible for its staffing, resourcing and general establishment, which remains the responsibility of the Secretary of State for Defence. The Attorney-General and his predecessors have exercised this general superintending function to offer advice and general guidance to senior staff of the three service prosecuting authorities.
	Since 2003, the Army Prosecuting Authority has consulted the Attorney-General on a total of 12 serious Iraqi cases involving allegations against UK servicemen. The APA decided to proceed with four of these 12 cases: one case has been dismissed, with no criticism made of the APA—I believe this was the case referred to by the noble and learned Lord, Lord Lyell of Markyate—one case led to conviction and two cases are proceeding.
	As my noble friend Lord Drayson said in your Lordships' House in July of last year during the debate on the chain of command, the numbers of investigations are very small bearing in mind the number of personnel who have served in Iraq. Of the total of 176 cases mentioned during that debate, 151 were closed without any further action being taken. In 100 of those incidents, British troops had been fired upon. This needs to be seen in the context of the 70,000 military personnel who have served in Iraq.
	In conclusion, I hope that the process of justice within the Armed Forces will be much improved by the Armed Forces Bill, which seeks to consolidate the service discipline Acts into a single system of service law and to bring service law more closely in line with civil law—and here I probably differ with the noble and gallant Lord, Lord Bramall. It will introduce a joint prosecuting authority in place of the three separate existing prosecuting authorities. In particular, I welcome the intention to create a tri-services redress of complaints panel with an independent element. I believe that such a panel would be widely welcomed in Her Majesty's Armed Forces, which remain the best armed forces in the world.

Lord Mayhew of Twysden: My Lords, I, too, thank my noble friend Lord Campbell for giving us the opportunity to discuss an element of the Attorney-General's responsibilities upon which, until recently, no light seems to have shone. I refer, of course, to his superintendence of the activities of the Army Prosecuting Authority and what must in reality be his decisive influence upon the question of whether a soldier should be tried by court martial or in the civilian courts in respect of a serious offence such as murder.
	It is plainly a topical matter because thousands of British troops are deployed already in Iraq, in very dangerous and testing circumstances, and many more are about to go to Afghanistan. It is important, too, because they need—and certainly deserve—clarity, not only as to the law within which they have to operate but also as to the fairness of any proceedings which they may find themselves facing. That requirement of fairness of proceedings certainly extends, I believe, to the character of the tribunal which will try them.
	The Armed Forces of the Crown—uniquely, as far as I am aware—have been given by Parliament, over many years, their own system of criminal justice, which includes sanctions potentially providing for extremely severe penalties in a proper case. It is not any anomalous quirk of history that has provided for this arrangement. It exists because Parliament has recognised the unique severity of the dangers that soldiers—and it can be true nowadays of all servicemen and servicewomen—may be called upon to face, a point eloquently and authoritatively made already today by the noble and gallant Lord, Lord Bramall. They have to take instantaneous decisions, as has often been recognised in this House, on the strength or weakness of which they may themselves die.
	That is why a system of martial courts, staffed by martially experienced people, has been provided which, professionally directed as to the law, can bring to these trials a personal understanding of the realities of conflict that cannot be expected from a civilian court. I think, for my part, that soldiers have found this reassuring, and certainly the noble and gallant Lord, Lord Bramall, and others with a wealth of military experience have confirmed that on previous occasions.
	I have absolutely no problem at all with the arrangement whereby the Attorney-General superintends the Army Prosecuting Authority, who also serves as the Director of Army Legal Services. After all, for more than 100 years, the Director of Public Prosecutions has by statute been superintended by the Attorney-General. So far as I am aware, the word "superintend" has never been construed—and very properly so, because it means what it says. This has given rise to a thoroughly commonsense relationship between the Law Officer whose duty it is to answer to Parliament for prosecuting policy, as the noble Lord, Lord Truscott, said, and the professional head of the Crown Prosecution Service, who is the decision taker.
	However, those two—the Attorney-General and the DPP—have never had to decide as to which of two quite different criminal jurisdictions should be selected in a particular case, and yet in the now notorious case of Trooper Williams this was the critical choice that the Attorney-General made. This is clear from the documents that my noble friend Lord Campbell has brought forth. It is a decision that has caused much concern. That seems to me to be the crucial decision where you have a jurisdiction to choose or where you express a decisive preference for one jurisdiction or another.
	The Williams case displayed the significance of that choice very vividly. In that case the Attorney-General plainly advised a further trial—this time in the civilian courts—of charges which had already been dismissed by two commanding officers. We have heard all this before and I have no intention or need to reopen the Williams case today. It is enough to say that the ultimate decision to drop the case—virtually at the door of the court—was received with a great deal of satisfaction by a great many people who had been worried by it. It took six months for Williams to be told that the matter was being reconsidered after dismissal of the charges, and another three months before he was told that he was going to face trial again, but it was very noticeable that at no stage during that deliberative process—which I am sure was anxious and conscientious, and which certainly cannot be described as hurried—was Williams allowed to participate at all. Most of the time he was not even told it was happening.
	Given the potential consequences for Williams of the decision to retry him, does the Attorney-General regard that procedure as unfair? Does it not stand in stark contrast to his own jurisdiction as Attorney-General regarding a sentence that he considers unduly lenient? He can seek the leave of the Court of Appeal to refer it for review. When I introduced that excellent reform—if I may modestly so describe it—in 1988, I do not think that I would ever have considered denying the defendant any right at all to be heard, and I would not have got the proposal through Parliament had I done so. In fact, the defendant has to be told by the registrar of the Court of Appeal of his right, on leave from the court, to present any argument to the court, in person or by counsel, even on the hearing of the Attorney-General's application, not to mention on any resulting hearing of the reference itself.
	That is why my noble friend is so right to make the case today for a change. He does so, and so do I, without making the slightest imputation upon the integrity or the propriety of any decision taken by the Attorney-General on personal grounds. I well recall that the Attorney-General has as his daily fare one anxious decision after another as well as having to face the attentions of extremely versatile critics.
	For my part, I would limit the scope for change to cases where the proceedings in question are to be taken against a soldier in respect of his conduct when in a conflict situation. If it is proposed that his case should be tried not by court martial but by a civilian court, I suggest, with my noble friend, that there should be a hearing before a High Court judge at the instance of the Attorney, with the defendant entitled to participate, or at least to seek the leave of the court to participate. The scope of the hearing should be wider than in an application for judicial review, and the burden ought to be on the Attorney to show why, notwithstanding the context of a conflict situation, it would nevertheless be in the interests of justice, including justice to the soldier, for the case to go to a civilian court on the basis of the evidence available. The application would be that of the Attorney; the decision would be that of the court. Whichever way it went, I think that much reasonable anxiety would be allayed in the hearts and minds of those—and their families—who, in the service of the Crown, are sometimes called upon to put their lives in mortal danger.

Lord Corbett of Castle Vale: My Lords, I am totally happy to do as the noble Lord asks.
	In the Attorney-General's role as superintendent of the military prosecuting authorities, it is quite right that he should retain the power to express the view and offer the advice that some serious cases, rare as they may be—or not—which in his or her judgment are important on the grounds of public interest, should be heard in the civil rather than the military courts. I am sure there will be agreement around your Lordships' House on this point: I do not believe that politicians have any place in the civilian or the military justice system. That is why I made the point about the proper independent role of the Attorney-General. That needs to be nailed down and made clear so that everyone can understand. The minute politicians seek to interfere in any part of the judicial process, it is the death of the system's independence.
	I wish to make two other observations. Some of the more excitable newspapers referred to so-called political correctness with regard to the prosecutions of Trooper Williams and Corporal Blair. It took General Sir Mike Jackson, the Chief of the General Staff—he should know, shouldn't he?—to say that that was quite untrue. It then took the Army Prosecuting Authority, in the shape of Major-General Howell, in his evidence to the Select Committee on the Armed Forces Bill on 26 January this year, to say:
	"There has been no suggestion from anyone that either me or the leading counsel involved should take decisions for political or any other reason. I am quite certain that none of those experienced Queen's Counsel would tolerate those suggestions. I would certainly not tolerate any suggestion that my decision should be interfered with by anybody".
	He added, although I do not think he needed to:
	"I hope that sets out our position as clearly as I can".
	I believe he did that absolutely. Those two pieces of evidence should lay to rest any of these irresponsible claims of political correctness influencing what happened in this case.
	I make this last point as a former journalist, but I make it none the less. The media have put forward the argument that some unfounded cases are being taken forward to prosecution—in this short debate, we shall all have in mind certain cases. That is an insult for the prosecuting authorities, whether military or civilian, and it does no credit to newspapers that peddle it. I think that it can threaten—and I really mean this—to undermine the military performance of those who are serving in dangerous situations. It can damage recruitment and it can affect morale, and none of us want that in the Armed Forces.

Lord Astor of Hever: My Lords, the House and the Armed Forces owe a debt of gratitude to my noble friend Lord Campbell of Alloway for the expertise and zeal with which he focused his spotlight on the theme of military justice and the chain of command. Regrettably, there is some ambiguity about the nature, extent and basis of the guidance given by the noble and learned Lord the Attorney-General under his supervisory authority to the Army Legal Services and the Army Prosecuting Authority. Like my noble friend Lord Mayhew, I make no criticism of the noble and learned Lord's integrity.
	There should not be ambiguities; there should be precision. At the heart of those ambiguities in the Trooper Williams case lay the rules of engagement. We know that his CO, on legal advice, took the view that his action was within those rules. When the case was brought before the court, those rules were withheld from the judge, as she pointed out, although she was shown a brief summary of them.
	The current evolving deployment of UK troops on a difficult, dangerous and still ambiguously defined mission to a volatile region of Afghanistan must raise in the minds of those directly and indirectly concerned serious worries not so much about what the rules of engagement say, but about their legal standing. If a soldier acts within the rules of engagement, he or she should not face charges. That, it seems to me, is also the view of Brigadier Andrews, director of personnel services for the Army, supported by Commodore Fraser, director of legal services for the Royal Navy. Giving evidence to the committee on the Armed Forces Bill, Brigadier Andrews said—I quote from the uncorrected transcript:
	"we have our rules of engagement and, of course, it is the surety for the soldier acting within his British rules of engagement that he is acting within the law".
	The Armed Forces Bill should establish beyond doubt or question that the rules of engagement, as laid down, are the law of the land and that they give the protection to our people that has been assumed and which Brigadier Andrews has claimed to Parliament.
	The Bill should also define in statutory terms the supervisory role of the Attorney-General. That power would appear to rest on an answer given by the noble Lord, Lord Robertson of Port Ellen, when he was Defence Secretary to a parliamentary question on 19 January 1998.
	Although the prosecution of Trooper Williams finally failed, the case is of continuing significance for its impact among members of the Armed Forces. They see themselves all too easily in similar peril, not from the enemy but from people on their own side, on whom they believed they should be able to rely. Giving evidence to the Armed Forces Bill Committee, Mr Julian Miller, director-general of service personnel policy at the MoD, said, again according to the uncorrected transcript:
	"There has been one case which . . . has led to a soldier being tried outside the military system and the circumstances that led to that we think are circumstances we would wish to avoid in the future and the Bill has been constructed in a way which will, we believe, ensure that that does not happen again".
	Given the status of the witness, this statement must be taken as an expression of considered policy, but I do not see where this safeguard is in the Bill. While I do not expect an answer from the noble and learned Lord, I would be grateful if someone from his office or the MoD could write to me pointing out where in the Bill that will happen and providing an assurance that transfer from military to civilian jurisdiction will never happen again in operational cases.
	The noble and learned Lord has assured me in correspondence that he understands the difficult operational circumstances that our Armed Forces face, and I am reassured to that extent and at that level of authority. But anxieties remain relating to other links in the justice system. Too many soldiers of all ranks have told me they are really concerned that the people who run the Army Legal Services and the Army Prosecuting Authority, those who make the decisions affecting individual cases, seem to have little personal experience or understanding of those operational circumstances. I can understand the arguments on both sides. On one side there is the evident case that the Army Legal Services and the Army Prosecuting Authority, in particular, need to enlist better lawyers, and on the other, that those who work in the service and the authority should be drawn from those with practical experience of military operations of the kind that may result in events which require inquiry and reasoned and properly informed decisions whether or not to prosecute.
	The former Adjutant General's comment about "offeringfor prosecution" Trooper Williams to placate pressure groups and human rights lawyers still rankles with ordinary servicemen and women. Unfortunately, that has led to a climate of concern about the growth of a litigation culture, making them risk averse. If we are going to sustain Armed Forces focused on what it takes to fight and to win, we cannot allow the development of a cast of mind that is risk averse. It is the absolute antithesis of military morale. Young soldiers are trained to be aggressive and to fight wars. When split-second decisions have to be taken by a young soldier, or even a more experienced one, in testing circumstances, perhaps under fire or in a state of extreme fatigue, the potential for error is enormous. Soldiers must be held responsible for their actions. But so must they be allowed to make mistakes. The interpretation of the law must be much more flexible than for a civil situation.
	In the past, the noble and learned Lord has justifiably expressed his concerns about the quality of military investigations. Quite apart from the inherent difficulties in undertaking forensic inquiries to a Home Office standard, under fire or in the aftermath of fire fights, the service police are significantly under-resourced to carry out complex investigations in theatre. For military justice to be effective, the service police must have the resources, funding, manpower and operational doctrine needed to provide the service prosecuting authorities with prompt and reliable investigations. The Armed Forces Bill will, inevitably, result in an increased workload for the service police. Therefore, they need more resources, not fewer.
	Air Chief Marshal Sir Anthony Bagnall, as Vice-Chief of the Defence Staff, commissioned, as long ago as 2003, a review of the service police on operations. The report found that only 4.3 per cent of the service police were qualified and trained to carry out investigations into the most serious of offences and available for deployment.
	Furthermore, the report indicated that the future structure of the Army may result in fewer resources for an already overstretched military police force. What has been done to give effect to the recommendations in that report; notably, improved training, better provision of equipment and improved legal advice in theatre?
	How is the performance of the Army Prosecuting Authority monitored and measured? Is that part of the supervisory responsibilities of the noble and learned Lord? Or is it just something that may occur intermittently somewhere within the backwaters of the MoD?
	Some detailed annual statistics are available, extracted by means of Parliamentary Questions by my honourable friend Robert Key, about the number of courts martial verdicts that have to be varied on review. Is that an acceptable level? Who decides?
	Partly because of the sub judice rule, it is difficult to track progress, or the lack of it, in particular cases. We on these Benches are deeply concerned about the long delays in military investigations in numerous cases. According to the uncorrected transcript, Brigadier Andrews said,
	"timely justice is what military justice should always deliver and that is, of course, what soldiers on the ground want".
	What is the noble and learned Lord's role in preventing delays? Will he provide some tangible evidence to the House that he is making real efforts to put his personal impetus behind the brigadier's words and that final decisions on military cases are reached in a timely and efficient manner?

Earl Attlee: My Lords, I am grateful to my noble friend Lord Campbell of Alloway for introducing this debate. I am neither a lawyer, a former Minister nor a former CDS. I am much closer to the shop floor, a humble major, and I am subject to military discipline as we speak.
	Fortunately, I have never come even close to having to engage an enemy, but like every other member of the Armed Forces, I have to be prepared to do so at no notice. I am a serving TA officer. I am liable to be called up for operations and I have taken part in two so far. However, noble Lords should understand where I come from. If I had to engage the enemy and apply lethal force, I have absolutely no confidence whatever that I would be promptly and fairly dealt with—not one shred.
	However, it is important for noble Lords to understand that I have full confidence in the chain of command—my commanding officer, my brigade commander, the divisional commander, Commander-in-Chief, Land, and the Chief of the General Staff. But they cannot help me or exonerate me of any wrong-doing, even if I had acted precisely in accordance with their intent and with the rules of engagement. On current evidence, I will not know whether I had acted properly and legally for at least two or three years, if ever, even though I might have had only as many seconds in which to make my decision during the operation. There does not seem to be a system to exonerate those who have only done their duty, and legally—at least not any longer for murder and manslaughter. This applies equally to the Armed Forces and the police, who have their own problems. I will resist the temptation to comment on the working of the APA and the CPS, but I agree with almost everything that my noble friends have said.
	I expect that some noble Lords wonder why soldiers continue to serve and, in particular, whether I would agree to go on another operation. There are numerous hazards on operations: injury; sickness, including post-traumatic stress disorder; and death. Delayed justice is just another hazard. Everyone, including me, just hopes that it will not be him.
	Would I go on operation? My biggest problem as a TA officer is my civilian occupation, which happens to be in your Lordships' House, but it could be elsewhere; it is not the statistically low risk of being hit by delayed justice. Moreover, I will be 50 years old in October, so it is about time for me to consider retiring, but I will certainly not consider resigning because of this problem.
	What advice would I give to a young man considering joining the British Army, either the regular Army or the Territorial Army? Until we sort out this shipwreck of a disciplinary system, supervised by the noble and learned Lord the Attorney-General I would advise joining the Royal Navy or the Royal Air Force, which offer just as good a career. There is just as good an opportunity to make valuable public service and virtually no chance of experiencing the difficulties which were faced by Trooper Williams. I pay tribute to him for conducting himself so well.
	Noble Lords will have seen the shocking newspaper reports last weekend. They will have detected a fairly robust line in my speech and interventions. Even in high-intensity war, once the enemy is a prisoner and no longer a threat, he is entitled to entirely different treatment. Whether it is a war-fighting or a peace-keeping operation, prisoners must be treated humanely, not only for legal reasons, but also to facilitate reaching the desired end state by winning the hearts-and-minds campaign.
	I shall not weary your Lordships with the detail. However, in every year of my military service, the need to protect prisoners and other vulnerable people during operations has been drummed into me. It is extremely hard to understand why we are suddenly experiencing problems in this respect. It is no use Ministers and noble Lords saying that such cases have been unusual in Iraq. During Operation Banner in Northern Ireland, which ran for several decades, soldiers were under severe provocation, but problems were rare, especially as far as gratuitous assault was concerned.
	Sadly, things did go wrong on Operation Telic in spring 2003. If they had led to a court martial by the end of 2003, or perhaps early in 2004, or at least charges being laid, would matters have gone so badly wrong in 2004? If one exercises military discipline promptly and fairly, with appropriate checks and balances, and a short "flash-to-bang" time, one can get away with lighter punishments, but still have the same deterrent effect. In addition, more serious problems can be completely avoided.
	My own view and experience is that our system of military discipline is falling apart. I do not find myself in agreement with the noble Lord, Lord Moonie, despite his experience, but I look forward to debating the Armed Forces Bill with him. His experience will be invaluable.
	I will give your Lordships an example of where the system is falling down at a low level. It is falling down with the ingress of the ECHR and by means of the Armed Forces Discipline Act. In 2002, I was driving along the A303 on Salisbury Plain in my Land Rover Discovery at 65 to 70 miles an hour. I was overtaken by an Army heavy recovery vehicle, towing another heavy vehicle. This was reckless. My duty was to report this to the Royal Military Police and I did so. My evidence alone would have been quite sufficient to convict since I was experienced with this type of vehicle—I was not just a second lieutenant straight out of Sandhurst. However, the Royal Military Police never took a witness statement from me; therefore, no disciplinary action could be taken. If it had been, the penalty under summary jurisdiction need not have been severe—perhaps a £150 to £200 fine—but it would have deterred the driver from committing that sort of offence. Theoretically, it could be a charge of dangerous driving, an imprisonable offence, but my point is that there is no need to do that; there could be a short "flash-to-bang" time and a modest fine, and it should all be over in less than a week, using summary dealing. But suppose that the driver lost control of the vehicle—the 37 tons of these two vehicles—and ploughed into a school bus, causing numerous casualties; then I suspect the Royal Military Police would ring me up very quickly to ask for a statement. It would be an open-and-shut case of causing death by dangerous driving, and no doubt a prison sentence would follow.
	When I raised the issue at a previous debate, the then Minister, the noble Lord, Lord Bach, never wrote back with an explanation; presumably there was none. My point is that if you have the moral courage to take decisions promptly and fairly, you can avoid much greater problems arising later and do so with less severe punishments.

Lord Thomas of Gresford: My Lords, I express my gratitude to the noble Lord, Lord Campbell of Alloway, and pay tribute to his distinguished military and legal career, which makes him uniquely qualified to raise these matters. I also declare an interest as someone who has appeared in many courts martial and court martial appeals.
	The relationship between the Attorney-General and the service prosecuting authorities is significantly different from his relationship with the Crown Prosecution Service. My noble friend Lord Garden has already referred to the evidence of Major-General Howell, the Army Director of Prosecutions, in giving evidence to the Armed Forces Bill committee. He said that in his view the Attorney-General had a right to be consulted on major cases, but he added that,
	"we have to accept that the final decision on whether to Court Martial someone ultimately is our decision; it is not the Attorney's or anybody else's . . . we are not like the CPS in that sense. The point is that the decision is ours".
	That was a firm declaration of independence.
	The noble and learned Lord the Attorney-General in the last annual review that he published put it this way, saying:
	"The Law Officers have a general oversight of the Service Prosecuting Authorities and assist with advice, such as, in some cases, determining whether a matter should go before a military or civil tribunal. They receive an annual report on the activities of each Service Prosecuting Authority".
	So it is a "general oversight". That is very different from the relationship to the Crown Prosecution Service. In his introduction to that annual review, the noble and learned Lord the Attorney-General said that he appoints and superintends the Director of Public Prosecutions. Although the noble and learned Lord, Lord Mayhew of Twysden, said that no one had ever sought to define "superintendence", the Attorney-General explained the concept, saying:
	"This means that the Attorney General (i) has ultimately the ability to give directions to the DPP in relation to the overall conduct of the CPS and its prosecution policy and (ii) is answerable in Parliament for decisions or actions that he or the DPP takes on prosecution matters and for the policy that is applied by the CPS in the handling of particular cases".
	He goes on to say that successive,
	"holders of both offices have accepted that this means that in relation to individual prosecuting decisions, in the event of disagreement between the Attorney General and the DPP, the Attorney General's view would prevail".
	The Attorney-General is therefore ultimately responsible for CPS decisions, but not for prosecution decisions taken by the service prosecuting authorities. No doubt he is asked for advice, but there does not appear to be any formal mechanism. Indeed, it was the evidence of the heads of each of the service prosecuting authorities that the Attorney-General might well learn of cases not from them but from newspapers or letters from Members of Parliament. The noble Lord, Lord Corbett, pointed out that they were also anxious to emphasise to the committee that no suggestion was ever made to them either by the noble and learned Lord the Attorney-General or by the leading counsel, whom they consulted, that they should take decisions for political reasons.
	I agree with the noble Lord, Lord Corbett, that it is right and proper that decisions to prosecute should not be influenced in any way by party-political considerations. However, they should most certainly be influenced by considerations of what is or is not the broad public interest, and I do not consider that the heads of the service prosecuting authorities are the appropriate people to determine what the broad public interest is. Nor is it right that the Attorney-General, who does not bear responsibility with decisions to prosecute in a particular case by way of court martial should be roasted in Parliament later. I do not know what influence the noble and learned Lord the Attorney-General has with the Army Prosecuting Authority; I am sure that it is very considerable. However, in one court martial, now completed, the leading counsel for the prosecution was formally approached by the defence with the advice that he should seek the advice of the Law Officers as to whether to continue the prosecution on public interest grounds. I really do not know what happened; but if the Army Prosecuting Authority maintained its independence and did not consult the noble and learned Lord the Attorney-General, I am sure that the consequences were very unwelcome to that service, and to the Attorney-General, who had to defend and stand the criticism in this House.
	There is a broad public interest involved. In a recent case in the United States, a Chief Warrant Officer Welshofer was convicted at a general court martial of negligent homicide and dereliction of duty for his part in the death of an Iraqi general during an interrogation that he and others were carrying out. His counsel, a Mr Frank Spinner, made this important point, which has been echoed by your Lordships today. He said that when men and women are sent out to a hostile country to fight and to put their lives on the line, the government must give them clear rules and back them up. He said:
	"They must be given enough room to make mistakes without treating them like criminals".
	Unlike many jobs or professions, the trade of the soldier is violent, and if he makes a mistake he is likely to cause injury or death. It is difficult to draw the line, as the noble and gallant Lord, Lord Bramall, said in his speech, about what should be punished and what should not.
	Mention has been made of the rules of engagement. One of the problems in the immediate aftermath of Operation Telic, the invasion of Iraq, was that the rules of engagement did not change with the cessation of hostilities. Soldiers trained aggressively to attack and if necessarily kill the enemy—they were given rules of engagement to that effect—found suddenly that they were required to act as an armed police force. However—this is the important point—they were given no fresh instructions, fresh training or fresh rules of engagement for many months. It most certainly was not a Northern Ireland situation of assisting the civilian police, with all the constraints that involved. Iraq was and is hostile and dangerous country, and our soldiers deserve to be spared the task of creating their own rules of engagement for the unexpected situation that arose there, whereby, instead of being greeted like heroes on the cessation of the fighting phase they were met with a bullet and a bomb.
	The absence of clear rules makes it impossible for the soldier to determine which orders he received were lawful, which he must obey, and which orders are unlawful, which he should disobey to avoid criminal liability—because "I was only obeying orders" is not a defence. He must know where he stands. Both my noble friend Lord Garden and the noble Lord, Lord Moonie, have made that point. It is critical that military commanders, and indeed the political leaders behind them, lay down and communicate to the troops clear standards of behaviour towards the civilian population, prisoners of war and, in particular, detainees.
	Fortunately, the vast majority of our troops are disciplined and professional, but from time to time their activities give legitimate cause for concern and prosecutions are considered. The problem as I see it is that the heads of the service prosecuting authorities may be too close to the action. They may come down heavily on the squaddie without examining what is wrong in the chain of command. In the Evans case—the example to which the noble and learned Lord, Lord Lyell, referred—the prosecution did not in my belief obtain, let alone consider, the rules of engagement in operation at the time as prepared by the High Command until asked by the defence to produce them weeks into the trial. I am sure from the prosecution opening that the prosecutors believed some sort of Northern Ireland rules of engagement had superseded the rules for invasion and fighting of the war, when that had not happened.
	A second problem is that service prosecutors will prosecute a serviceman for criminal offences from time to time in the interests of military discipline, in circumstances where the Crown Prosecution Service would not. That was the stance accepted and relied on by the Crown in the case of Boyd, Hastie and Spear before the Judicial Committee of this House in 2001, a point made by the noble Lord, Lord Moonie.
	While I fully support the creation of a director of service prosecutions under Section 355 of the Armed Forces Bill, I am unhappy that the Bill does not strengthen the superintendence of the Attorney-General. It is left to some vague convention that he be consulted in serious cases. I would go further. There are serious political issues with respect to the activities of British forces abroad, and there is a wide public interest. In my view the Attorney-General should have explicit ultimate responsibility for prosecution decisions, as he does with the CPS, and should be answerable directly for those decisions in Parliament. I should be interested to know if the noble and learned Lord would welcome that responsibility. Ultimately it is important that the public have confidence in the system, and that those who serve in the forces have confidence that, if they are in trouble, decisions to prosecute for serious crime will be made independently and fairly.

Lord Goldsmith: My Lords, I, too, welcome the fact that the noble Lord, Lord Campbell of Alloway, has initiated this debate. It has been a very constructive debate. It is necessary for me to deal still with one or two matters in relation to the past but I want to say something also about the future because I detect a strong sense of agreement on where we need to go. I shall come back to that.
	I am grateful to the noble Lord, Lord Kingsland, for mentioning the meeting to which I invited Peers who were interested in this debate, which took place just over a week ago. I found that very constructive and I am grateful to those noble Lords and noble and gallant Lords who attended.
	I want to make one or two important points on which I hope there is common ground. First, this House and this Government have huge admiration for our Armed Forces. I share very much in the pride that the people of this country have for our troops who have served with such distinction, bravery and ability not just in Iraq but in other places in the world. No Minister of this Government would want to do anything which undermined the effectiveness of our Armed Services.
	Secondly, I hope that my next point is common ground in this House—we all agree that members of our Armed Forces, like everyone else, must be subject to the rule of law, and that there cannot be exceptions to that. Where there are credible accusations of criminal behaviour, it is clearly right that they should be investigated and where there is sufficient evidence to prosecute, they should be prosecuted.
	Thirdly, I am glad that in the course of this debate generally it has been accepted that decisions to prosecute servicemen or servicewomen have not been politically motivated or driven by political correctness. I have said before, General Sir Mike Jackson has said before, as the noble Lord, Lord Garden, pointed out in evidence to the Select Committee on the Armed Forces Bill, Major General Howell and the Chiefs of Staff all said the same thing—those accusations are untrue. I shall come back to the significance of those statements. I very much welcome the endorsement of the position. If the noble Lord, Lord Campbell of Alloway, will forgive my saying so, I noted that, notwithstanding his generous statements about me, which he has made before, said that people need to know that decisions are made in the public interest and are not motivated by the political interests of the Government. That is absolutely right; the political interests of the Government do not come into this at all. The letter to which he referred—he has referred to it before; as he knows, I had not seen it at the time—was not about placating human rights interest groups but about making a point of importance, which is that credibility in our justice system depends on decisions being taken by independent persons. My noble friend Lord Moonie rightly took that one stage further by saying that if we want—as I certainly do—to ensure that no British serviceman or servicewoman ever appears before the International Criminal Court—though I strongly support the existence of that court—we need to demonstrate that we have a system which is capable of investigating and, where appropriate, dealing with allegations of criminality. That is important. I believe that we have such a system, which is why I do not believe we will see our servicemen or servicewomen in that court.
	On the specific points that have been raised, I wish to say a few words about two cases, the Trooper Williams case, which was referred to by a number of noble Lords, and the Corporal Evans case, which was referred to by the noble and learned Lord, Lord Lyell of Markyate, and touched on by the noble Lord, Lord Thomas of Gresford. I want to put those cases in context because sometimes one might get the impression from the media that a vast number of cases are presently being prosecuted or that a vast number of cases are being brought into the civilian jurisdiction.
	As Major General Howell said in his evidence to the Select Committee that there have been only 12 cases involving 43 accused brought to the Army Prosecuting Authority in which there were allegations of offences of murder, manslaughter or serious abuse of detainees. Those cases comprise a very small number of the nearly 80,000 troops who have served in Iraq, and with conspicuous ability, courage and respect for the rule of law. The Army Prosecuting Authority decided to proceed to trial in only four of those 12 cases. In a number of those other cases, where it was decided not to proceed to trial, decisions had been made in a matter of seconds in difficult situations. In those cases, mistakes were made resulting in someone who was not the enemy being killed or injured. Notwithstanding that, the prosecuting authority rightly did not proceed with those cases. In one of the cases that was proceeded with the accused were convicted—the so-called Camp Bread Basket case. The second was the Evans case, to which I shall come back. The third and fourth trials are due to take place in the future and therefore it is not appropriate for me to say anything about those. I need to refer to only two other cases involving service personnel which have not been dealt with under the military system. One is the Trooper Williams case and the other is a case in which charges have not yet been brought but is currently—as I believe is public knowledge—under consideration by the Crown Prosecution Service. Those are the only two cases which have been brought—or potentially brought—within the civilian system.
	What is the position with the Trooper Williams case? Some noble Lords have talked about this case as involving a choice by me between military and civilian jurisdiction. That is not the fact. The situation on that case was that charges had been dismissed by a commanding officer without the decision of an independent prosecutor. Under the terms of the Army Act, he could not then be put on trial by the military system, but it is clear from Section 133 of the Army Act that that did not mean that the civilian jurisdiction was removed. That point was debated before Mrs Justice Hallett when she heard the application in that case and she upheld the position that civilian jurisdiction was not removed. There was no question of a choice between the two; the only available route, if there was to be a prosecution at that stage, was using the civilian court. The matter was referred to me by the director of Army Legal Services at the request of the Adjutant-General, who did so following discussions with the Chief of General Staff and the Commander-in-Chief at land. They believed that the case should be referred to me and that a wrong decision had been made. I do not want to go into the details of the case because it is absolutely right, given what has happened, that this young man—and the corporal who was the other man involved, whose view of the incident was enormously influential in the case being brought—should be able to put all this behind them.
	I think I can leave it by saying, so that there is no doubt about it, that the learned judge, Mrs Justice Hallett heard substantive application which dealt with two issues. The first was that the case should not go ahead precisely because, it was argued, it was unfair, it was wrong, it was an abuse for the case to go ahead in circumstances where there had already been a decision by the commanding officer not to proceed and because of the delay. She considered those arguments but concluded that that was not a reason not to go ahead with the case. Secondly, she was asked to look at the evidence, which she did in detail. She heard evidence from senior officers who had served in Iraq about the operational circumstances and she concluded that there was sufficient evidence to put before a jury to convict of murder. So the case was looked at in considerable detail. When I come in to deal with the proposal of the noble Lord, Lord Campbell of Alloway, that those matters should go before a High Court judge at some stage, it is right to recall that this did go before a High Court judge. She considered all the arguments and concluded that it was right and proper to proceed but that it was for the prosecutors to decide whether they would do so. I will not go into more detail of the circumstances in which the Director of Public Prosecutions took the decision not to proceed with the case.
	The question, posed by the noble Lord, Lord Kingsland, arises: what is the power of the Attorney-General? First, as has been noted—and my noble friend Lord Moonie explained the background to this—I have superintendence responsibility not just to the Army Prosecuting Authority but also to the other two authorities; I see the prosecuting authority for the Royal Air Force and for the Navy. So I am not absolutely sure that the advice that the noble Earl, Lord Attlee, had in mind to offer to others to go to another service will achieve his objective—it is the same system. Let us leave that where it is.
	The question arises: what to do in circumstances of concurrent jurisdiction? Concurrent jurisdiction arises in three circumstances. First, there are many hundreds of cases each year in the United Kingdom where there is concurrent jurisdiction. Service men and women commit or allegedly commit offences, sometimes only against military law, but sometimes against the civil law as well, and the question has to be decided in those cases: where do they proceed? Hundreds of times each year, the United Kingdom military and civil police and the prosecuting authorities decide whether those offences should be tried in the military or the civil courts. In each of those cases they apply, without apparent difficulty, guidance set out in the Queen's regulations and they discuss that matter between them. The proposal of the noble Lord, Lord Campbell, might suggest that in each of those cases an application might need to be made before a High Court judge. That cannot conceivably be right.
	Secondly, there are cases where our troops are stationed in a country such as Germany where, again, matters take place that are an offence against German law or whatever the local jurisdiction is. There is an arrangement there between the military authority and the civil authority as to what should happen in those circumstances. The principle is that the civilian authority has primacy, but waiver of jurisdiction agreements generally allow the military authorities to operate.
	Thirdly, in respect of very few offences—only serious offences such as murder, manslaughter and breaches of the Geneva Conventions—the United Kingdom courts have jurisdiction if they are committed by a British subject wherever they take place. That is the narrow category of case of which Trooper Williams was an example.
	Who decides in those circumstances which should be the jurisdiction? When I started in office nearly five years ago, the prosecuting authorities told me that it was their practice to bring those matters to the Attorney-General for a decision and that they had been brought for a decision to predecessors of mine. Secondly, as I noted in the debate in the House of Lords to which the noble Lord, Lord Kingsland, referred, regarding the important case of Boyd, Hastie, Spear and others, the House of Lords, particularly the noble and learned Lord, Lord Rodger of Earlsferry, said that in cases of overlapping jurisdiction it was for the civilian authorities to decide. I am the ultimate civilian authority in relation to criminal law in England and Wales.

Lord Goldsmith: My Lords, it was not transferred from the military jurisdiction because the effect of the Army Act was that as the commanding Army officer having dismissed the charge, the case could not proceed through the military system. That was the whole point. There it is and I want to move on.
	I must say a word about the Evans case, which was raised by the noble and learned Lord, Lord Lyell of Markyate. Given the time and the points that I still want to make, I need to write to the noble and learned Lord about that case. I want to emphasise the following points. First, it was not a case that was strictly brought under the code for Crown prosecutors, because it was a military prosecution in a court martial, and was not brought in a civilian court. Secondly, I am assured by the Army Prosecuting Authority that it carefully considered the strength of the case and received advice from independent leading counsel that supported its view. Thirdly, it often happens when cases come to court—goodness me, that is one of the reasons we have a justice system—that evidence which looked acceptable at one stage turns out not to be acceptable. It is much better that the courts decide that, than leaving it to prosecutors, however eminent, to make that decision. Fourthly, the Judge Advocate General said that there was sufficient evidence that there had been an assault, that a man had died in the course of it, and that that had happened as a result of something done by someone within Corporal Evans' group. The issue upon which he thought that the case could not go any further was whether there was acceptable evidence of joint enterprise. That was a narrow but critical point in the case.

Lord Jenkin of Roding: rose to call attention to the role of nuclear power in energy policy in the light of the consultative document, Our Energy Challenge; and to move for Papers.
	My Lords, I am particularly pleased that we are to have two maiden speeches today by the noble Lords, Lord Cunningham of Felling and Lord Turnbull, and we very much look forward to hearing what they say.
	It has been suggested to me that this debate on the Government's energy consultation paper is premature on the grounds that the consultation has only just started and will last for three months. I say at once that no one will expect the Minister in any way to anticipate the outcome of the consultation. The debate is intended to give your Lordships a chance to say what we think should be the outcome and to express our views on the energy review, and that I shall certainly do. I also have a few specific questions to put to the Minister.
	I am delighted that there is to be a full review of the policies set out in the 2003 White Paper, and as many have said, "not before time". Why is that? It is because, for the first time in our history, we are heading towards becoming a net energy importer. Our own oil and gas reserves are now falling faster than was forecast. Rising world demand for fossil fuels, especially from China and India, has had, and is bound to continue to have, a sharp impact on prices. The surge in gas prices this winter forced some big user industries to cut back on production. We face a threat to the security of our gas supplies. The Russian readiness to cut supplies to Ukraine and Georgia was just a foretaste of what might be to come. With Europe's increasing dependence on pipelines from and through unstable regimes, the 2003 assumption of ultimately depending on gas for up to 80 per cent of our requirements now looks dangerously unwise.
	The liberalisation of continental energy markets is essential. But, despite what I regard as an over-optimistic interim report from competition Commissioner Neelie Kroes, published this morning, those who heard Mr Andrew Duff, chief executive of RWE npower speaking to the All-Party Energy Studies Group on 24 January, were left in no doubt that liberalisation is going to be a long time coming.
	It is clear that ambitious energy saving targets in the White Paper are not going to be met, as the Secretary of State, Mr Alan Johnson, was starkly warned by his officials last year. Though there has been much investment in wind power, the 2010 and 2020 targets for renewables are most unlikely to be met. But what must be most disappointing for Ministers, who have rightly put climate change and cutting greenhouse gases as a high priority, is that the past three years have seen an increase, year by year, in carbon dioxide emissions.
	The White Paper model, of exactly three years ago this month, is seriously flawed. It cannot be business as usual. That is why I, and many informed people outside, have welcomed this review. In particular, as almost everyone has recognised, the nuclear option, which formed part of the White Paper—and which, only a few months ago, Ministers in this House were confidently asserting would not be needed—is now very much back on the agenda. Indeed, last week, I listened to an environmentalist claiming that the review is no more than a camouflage for a decision that has already been made to go nuclear. I happen to think, in fairness to the Government, that that is quite untrue. I sincerely hope it is untrue, because there must be much more to this review than new nuclear build.
	So what do I want to come out of this review? Top of my list is the imperative that energy policy must start with a clear, consistent and long-term policy for carbon, to address the threat of climate change. It must not be the other way round, making carbon abatement in some way an add-on to energy policy. All the experts, from whom I have taken a great deal of advice, and I am most grateful to them, have warned that it is the longer-term uncertainty about the Government's policies on carbon that is likely to prove the greatest disincentive and inhibition to investment.
	Another imperative is security of supply. We must not leave ourselves at the mercy of unreliable sources, and more self-sufficiency is one way to ensure that we can "keep the lights on". Then there is investment. The UK has a lot of ageing generation and transmission plant, and a huge new investment programme is needed. British Energy has put the generating gap at as much as,
	"perhaps as much as 60% of the power generated in 2004".
	It is now widely accepted that we need a mix of generating technologies, certainly including renewables. But, as everyone now recognises, there is a limit to that before the grid becomes unmanageable. You only need to look at the experience of a company like E.ON in northern Germany to see that. Of course, the mix must include combined heat and power, and distributed generation, where these are appropriate and cost-effective. There is no quick alternative to continuing with fossil fuel generation, despite its serious environmental penalties. Cost-effective clean coal technologies are still some way off, but new technologies, including integrated gasification combined cycle—IGCC—must be developed. I find it bizarre that that hugely important future development is relegated to a footnote in an appendix in the consultation paper.
	We must press ahead with energy saving and energy efficiency, and I am sure that more can be done. But there must be a clear-headed appraisal of what can be achieved as compared with what many regarded as the starry-eyed optimism of the White Paper. But all this will still leave a wide gap between supply and demand in the next two to three decades, a gap that can realistically be filled only by a new programme of building nuclear power stations. I shall return to this in a few moments.
	Continuing my list of what I want to see coming out of the review, the Government must not attempt to pick winners. There is wide recognition that investment decisions are best left to the market. The role of the Government is to set a clear framework within which the market can assess the risks and finance the investment. That framework must be set for the long term and, despite Ofgem's protestations, the present regulatory regime is essentially short term, as the noble Lord, Lord Tombs—who I am glad to see in his place—has warned this House on many occasions. I shall quote from the important note that was issued by all the main engineering institutions earlier this year:
	"The long time scale for investments in nuclear power makes them very sensitive to policy reversals, and uncertainty acts as a major deterrent to private investment".
	Finally, the Government must establish a level playing field for the achievement of these objectives. It is now widely recognised that nuclear power has a lifecycle carbon footprint as low as wind power. Last year, the noble Lord, Lord Sainsbury, wrote an important letter to the noble Lord, Lord Redesdale, in which he said:
	"nuclear power has one of the smallest environmental footprints of any source of electricity or any manufacturing process".
	That was a very important statement and we need to take full account of it. It has been endorsed by a recent study of the Torness nuclear power station by British Energy, which was mentioned in December, by Bill Coley, its chief executive. Given that, it is absurd that nuclear power has to pay the climate change levy. It has the lowest carbon footprint and is a benign source of power. Yet, it does not qualify for any of the incentives for reducing carbon emissions, which a programme certainly would. The review must recommend a level playing field.
	My list is not comprehensive and I know that other noble Lords will have their own additions, but my feeling is that the review will have failed if it does not do all the things that I have mentioned.
	I return to the nuclear option. The Prime Minister, to his great credit, recognised that this option must now be firmly placed on the agenda. In the light of that, I shall as the Minister some questions, of which I have given him notice. The proposition behind my questions is that since 2003 there has been an assumption on the part of many Ministers that the nuclear industry is to be wound down and will eventually disappear. The instrument for that is to be the Nuclear Decommissioning Authority—I emphasise the word "decommissioning"—and there has been more than a whiff of visceral ministerial hostility to the nuclear industry. But we have now had the first hints that that is changing. I mentioned a few moments ago the Prime Minister's words, and we have had the confident assertion of the noble Lord, Lord Sainsbury, in response to my noble friend Lady O'Cathain, that nuclear must be regarded as a renewable source. We have also had his statement about the life cycle carbon footprint. Now we have the energy consultation paper, with its clear message that nuclear has to be a serious contender. Nobody can read section 4 of annex A of the paper without recognising that.
	So what needs to change to respond to this new message? In the words of the song, "Love changes everything". That is what we must have here—a change in the entire climate towards the nuclear industry. First, therefore, is radioactive waste. The Science and Technology Select Committee was much encouraged by our recent meeting with the members of CoRWM. It is now on course to produce its report. I have seen a first outline draft. Although paragraphs have to be filled in, it now looks as though it can be confident of producing its report on time. It is widely assumed that it will recommend, as this House did some years ago, that the solution is to have a deep underground repository. So, my first question to the Minister is: what is the Government's timetable for moving on to the next stage of identifying sites for a deep underground repository? Seeing the way ahead on waste is regarded by the public as a critical issue for any new nuclear build.
	Secondly, there is technology. The most recent nuclear station built in the UK was Sizewell B—a US designed pressure water reactor, but built 20 years ago almost exclusively with British skills and labour. Now that BNFL is selling Westinghouse to Toshiba, we are left with no alternative but to buy foreign-owned technology for any new nuclear programme. There are competitors from a variety of countries in Europe, America and Canada. But we in the UK must have our own scientific and technological expertise if the UK industry is to play its part. So my second question is: what are the Government and industry doing to ensure that we have that expertise? Yes, I have studied the papers of the Cogent skills council, and it has certainly made a start, but it does not seem to be doing nearly enough to provide us with what we will assuredly need.
	Thirdly, there is the question of regulation. The Nuclear Industries Inspectorate, now part of the HSE, is crucial to any new nuclear build. All the players in the game have told me that they are undermanned. So I asked the chief inspector, Mike Weightman, about this. He told me that against an establishment figure of 179 inspectors he has only 163. But it is much more serious than that. He said:
	"This number does not take account of",
	and he mentions the planned defence expenditure; secondly,
	"extra work associated with the impact of the new Nuclear Decommissioning Authority";
	and, thirdly,
	"the impact on our resources of any decision by the Government, after considering the outcome of the . . . Energy Review".
	It does not have enough people. So my next question is: what are the Government going to go do about that? Without it, we cannot make any progress at all. It is amusing that the HSE published a large document last November called The Regulation of Nuclear Installations in the UK, but it is difficult to see the purpose if there are not going to be any inspectors to do the work.
	Then there is nuclear fuel. This comes from BNFL and supplies the existing reactors, but it depends on two plants at Sellafield. What will the Government's decision be about restarting the Thorp reprocessing plant, and what are they going to do to help increase the output of the Sellafield Mox plant, SMP, which is well below its capacity. Will the Minister tell us that?
	My last question is about decommissioning. The NDA strategy is to reduce everything to a greenfield site. Of course that fitted the 2003 scenario, but that is changing—love changes everything. It cannot approve that strategy, which is being put to it; how can it possibly do that in the new circumstances?
	I have one final point. In the 1990s nuclear attracted about 19 per cent support from the public. By January of last year that had risen to 35 per cent. The latest MORI poll relating nuclear to climate change and to the reliability of supply—I will quote two figures—indicates that 54 per cent are now willing to accept new nuclear build if that would help climate change and 63 per cent—nearly two out of three people—believe that reliability of electricity supply would need to be ensured though a mix of energy options including nuclear power and renewable resources. If you want to keep the lights on and you want to fight climate change, then the answer has to be a new nuclear programme. I beg to move for Papers.

Lord Chorley: My Lords, it is a privilege to be the first speaker to congratulate the noble Lord, Lord Cunningham of Felling. He comes to us after a career of great distinction in another place, and for me it is an added pleasure to follow someone who I hope I can regard as a fellow Cumbrian. He was the MP for Whitehaven and Copeland for 35 years. He has spoken to us with real authority and robustness, with just a touch of controversy that always adds a little spice to a maiden speech. I am sure we all look forward to his future contributions here, as we will to the maiden speech of my new noble friend Lord Turnbull, whom we will listen to shortly.
	I add my thanks to the noble Lord, Lord Jenkin of Roding, for giving us an opportunity to discuss the Government's consultation document, and to do so explicitly in the nuclear context, for surely that is the key issue. It is an issue that the Government have consistently ducked. Nevertheless, one detects a wind of change—and not before time.
	It seems sensible to start with the Government's four goals: first, to cut our carbon emissions by 60 per cent by 2050; secondly, to ensure reliability of supplies; thirdly, to promote competitive markets—I prefer the words "competitive energy supply", but I will leave that; and, fourthly, to ensure affordability. I go along with those goals except for "affordability", because that surely is a social issue and should be dealt with as such. We need to remind ourselves, however, that these goals are not independent of each other and how we weight them is a matter of judgment—and so, by simple extension, is the importance of the different fuels, the fuel mix. Here I take exception to the statement in the consultation document that,
	"it is not the role of Government to decide the fuel mix".
	I do not see how the Government can possibly duck fuel mix in broad policy terms.
	In the short time available, I shall restrict myself to renewables, gas, coal and nuclear. I do not think that we will get very far with renewables, notwithstanding the biomass lobby, the wave and tidal enthusiasts and the wind farm fan club. Even with the considerable implicit subsidy—the Government put it at £30 billion by 2020—we have made little progress. We all know the problems with wind: the need for back-up above 10 per cent; its dispersed nature; the environmental costs, not least the huge land take; and the huge cost of offshore. Of course renewables have a role to play, but I suggest that it will be of the second order.
	Then there is gas, which is by far our major energy source today. We all know that we will have exhausted the North Sea by 2020. We may be prepared to rely on the Norwegian interconnector, but, as others have suggested, we should surely not rely on gas from the former USSR area. Moreover, the advent of China and India onto world energy markets makes it seem likely that gas prices have reached levels which will remain for some years to come. We also need to remind ourselves that gas has 50 times the carbon emission rate of wind or nuclear on a lifetime basis. Nevertheless, it is probably only realistic to assume that it will be our major energy source until at least 2030.
	Thirdly, there is coal. One suspects that coal in cost terms will be as attractive as gas. But it produces twice as much carbon and so, surely, it is important—and one acknowledges the interest that the Government are beginning to take—to put considerable effort into tackling the costs of carbon sequestration and capture in coal. The same goes for gas, of course. It is surely also important that any new coal stations are designed to allow retrofitting in due course. Coal can, of course, be stored much more readily than gas, so I am sure that in due course it will become a major and reliable contributor.
	Finally, there is nuclear. It seems generally agreed that the stations now being ordered and built around the world will score highly on reliability and are probably cost-comparable to gas—nuclear has gained from the China factor. There is of course a caveat as to how they will be financed as the unit costs are sensitive to the discount rate. So there is the important question of what sort of regime would enable nuclear stations to be part of a commercial market.
	Decommissioning and waste disposal is the controversial issue, and here we have to wait for the waste management committee's report. In the mean time we should remember that the new stations will produce only a fraction of the waste of the old ones, especially low-level waste, and that we have a large legacy of waste from both the old stations and military sources which in any case will have to be dealt with. I therefore conclude, from what has inevitably been a quick tour d'horizon, that a balanced, competitive and reliable UK industry would include a substantial nuclear share and that this will be the only way of achieving our carbon emissions target.
	The White Paper asked five questions which I hope I have answered adequately. In return, and in the two minutes left to me, perhaps I could pose a few questions which relate to what the Government envisage will be the institutional framework to carry forward their policy—a policy that will have to ensure that the appropriate levels and timing of investment take place. Where will the boundaries between the state and the commercial sector be drawn? How, for example, will the nuclear licensing process be dealt with? Here one must put in a plea for the choice of a single standard design so that new stations will save time and uncertainty by being pre-licensed. That is being done in America, as the noble Lord, Lord Jenkin, reminded us. Equally, of course, in the significant savings from serial production there is surely a lesson to be learnt from the successful French programme.
	Then again, thought will have to be given to the contractual arrangements on the revenue side, as this will affect the financing arrangements, and so forth. What will be the future of the renewables obligation? Will it apply to nuclear? As the noble Lord, Lord Jenkin, said, it is absurd that it does not get the same subsidy as renewables. Is thought being given to revisiting carbon taxes? There are a large number of difficult technical, economic and administrative issues and one wonders whether the DTI has the expertise and the manpower to tackle the subject. One wonders whether it would be best to proceed by way of an energy agency responsible for nuclear licensing, overseeing the investment in general terms and acting as the price regulator—in other words, to do away with Ofgem, and so on.
	If we are serious about global warming, time is not on our side—and I see it is not on mine, either.

The Lord Bishop of Southwell and Nottingham: My Lords, a key question is: how imminent is this environmental crisis and catastrophe? According to James Lovelock's recent publication, The Revenge of Gaia, we face huge upheavals in the climate and environment within the next 20 to 50 years. It may simply be too late to do anything—a hard thing for humans to face, particularly those of us in the West who like to think we can control our destiny.
	Even Lovelock thinks there are things we can do. He advocates nuclear power. There are reasons why nuclear power may be the answer—fuel security, for example. To be able to generate the energy we need in our own country must be preferable to relying on sources within politically unstable territories, as the noble Lord, Lord Jenkin, mentioned.
	Another reason is having nuclear as part of a mixed economy with renewable energy. Renewable energy sources can be created close to people's homes where populations are sparser, but the current development of renewable technologies cannot provide enough constant energy to fuel larger conurbations. A nuclear power plant near a city will ensure energy in the vast quantities and concentrations needed, while renewables could work elsewhere.
	Another reason is generating power close to where it is needed. The environmental cost is reduced and the efficiency of energy is greatly increased if the energy does not need to travel. This could be the case for nuclear power stations close to cities. I also suggest that it could meet some of the concerns expressed by the Campaign to Protect Rural England.
	Yet another reason is that the technology is well developed. We should be in a position to open more nuclear power stations now, whereas renewables technology is still in its infancy by comparison. If the problem needs a solution urgently, nuclear power may be the way to go.
	If there are some reasons for nuclear power, there are also reasons why it may not be the answer. Let us look at some of the statistics on uranium mining. About 36,000 tonnes of uranium are mined each year to meet current needs. The European Commission estimates there may be only 2 to 3 million tonnes of exploitable uranium sources globally. On current projections of nuclear capacity, uranium mining operations will need to increase by 100 per cent within 10 to 20 years, at which rate uranium will run out within 30 to 40 years.
	Again, on the practical reality of new-build nuclear reactors, optimistic predictions are that they will not be ready until 2021 because of the time taken to design the reactors, gain the consent of the Nuclear Installations Inspectorate and the Environment Agency, gain the formal planning permission and then build the thing, by which time old nuclear reactors will be coming out of service. Although the technology is ready, the capacity to use it is not.
	Nuclear may not be the answer because of waste issues, which have already been mentioned. Claims that highly toxic spent uranium fuel rods can be made safe have not been fulfilled yet. We leave a deadly legacy to the generations that come after us. Research and development into new technology to neutralise waste residue will cost us a phenomenal amount of money and there are uncertain delivery dates.
	Another reason for not having nuclear is profligacy. Nuclear allows us to be profligate. Reduced energy sources or renewable energy sources, which demand us to live more simply, place constraints on human greed. With nuclear power we are using the energy source that gives us as much energy as we want and then leaves the mess to future generations. There are profound ethical issues concerning energy.
	Some may say, "What about nuclear fusion?" Nuclear fusion is claimed by some to be the answer. It does not use uranium and is, therefore, in theory limitless. Its waste products are thought to be less toxic than those of nuclear fission. However, the technology is still relatively new; there are problems in the containment of such energy; and even if the waste is less toxic, it is still toxic.
	Mr Carl Hughes, the UK head of energy, infrastructure and utilities at Deloitte, writing in the preface to its recent publication, 2020 Vision, stated:
	"Given the differing agendas of key stakeholders in the energy policy debate, and the need to strike the right balance between ensuring security of supply, reducing emissions and optimising affordability, finding an acceptable solution to this challenge will be both technically and politically demanding. Compromise, which is never popular, will be essential if the Government is to succeed.
	"We look across the whole of the energy and fuel supply value chains to take an holistic view of the challenges ahead. While we do not purport to have found 'the solution', we believe that we have created an agenda for discussion that reflects our conclusion that the UK is unlikely to achieve its overall objectives if decisions about the future of power generation are left entirely to the private sector. It is, we believe, up to Government to set policy and facilitate development of the necessary market levers that will incentivise investment in the most appropriate infrastructure and technology".
	I return to the issue I raised at the beginning: is it simply too late to do anything about our climate and environment in the midst of what I believe is our growing energy debate? I refuse to be pessimistic. As Sir Nicholas Stern says on the economics of climate change:
	"it is not too late to take actions to avoid the worst impacts of climate change. If Government set clear, credible, and long-term incentives, then businesses and individuals will respond, and emissions can be shifted to a more sustainable pathway".

Lord Woolmer of Leeds: My Lords, I add my congratulations to the noble Lord, Lord Jenkin of Roding, on securing this debate on nuclear power and on his excellent introduction. I also add my welcome to the warm reception already given to the maiden speech of my noble friend Lord Cunningham of Felling, who I have known as a good friend for over 25 years. Today, he was typically clear in his thinking and delivery, clear in his strategic outlook and balanced. I am sure that we look forward to many more contributions from him in this Chamber.
	When the wider public in households and businesses across the country think about energy policy, first and foremost, they think of price. People are worried about the rising price of electricity, gas and gasoline and the stability of those prices. They are not at all sure what on earth will happen. They want to feel that their energy supplies are secure and they feel uneasy when they see us increasingly depend on imported supplies of oil and gas from countries that too often give cause for concern about the reliability of their exports to us. Oil and gas are once again seen as economic weapons in political disputes.
	There is little doubt that governments, including our own, underestimated the likely path of oil and gas prices only three years ago. The Government's energy White Paper of February 2003 based its assumptions on an oil price in the mid-$20 range. How long ago that world seems. It will never return.
	On price, stability of price and security of supply, nuclear power for electricity generation has come into its own. The real price of nuclear power has been falling consistently for two decades. It is now competitive with oil, gas and coal, and, as my noble friend Lord Cunningham said, what it needs is not subsidies, but certainty, clarity and support. The real price of nuclear power is predictable for 30 or 40 years—as far ahead as you can look. The only risk to the cost of nuclear power generation is that it will fall. What a delightful choice that would be for households and businesses. Nuclear energy offers households and businesses a stable, even falling, price of electricity for as far ahead as we can look, and it offers security of energy supply.
	The other big concern in energy policy, which rightly loomed large in the 2003 White Paper and in the January consultation paper, as well as in the minds of others in the public, is the role of energy in climate change. The European Union has set its member states some ambitious targets for reducing greenhouse gas emissions during the next 45 years. I do not think that people in this country realise quite how ambitious those targets are. The United Kingdom Government have committed themselves to reducing carbon emissions by 60 per cent by 2050. If our economy is to grow by 2.5 per cent a year in that period, we must reduce the amount of carbon produced per unit of output by 90 per cent from current levels. It is therefore envisaged that we will produce only 10 per cent of current levels of carbon per unit of output. They are truly vast ambitions, but they are essential if we are to tackle climate change.
	What will achieve this? The January consultation document is frank. On transport, it states that people will not be forced out of their cars or prevented flying for holidays or on business around the world. Transport has to be tackled. Aviation has to be brought into the emissions trading system in Europe, but that will not stop it growing. If we are going to tell people, "Sorry, you were born too late to go on holiday abroad", that will not do any good. If we are going to tell people in China and India that we will price them out of coming to Europe in aeroplanes, they will go elsewhere.
	Increased energy efficiency is extremely important. Will it enable us to consume 10 per cent of current energy used in households, offices and businesses? What is current energy policy? Oil, gas and coal are expected more or less to balance each other out. They are in the European emissions trading system. The price of carbon will rise, forcing improvements in efficiency, but consumers will face increasing electricity prices. That is what happens when the price of carbon goes up. So the mechanism envisaged for households and businesses to meet the climate change targets is higher prices.
	What is the current policy on renewables? It is intended that the use of renewables will increase to meet 20 per cent of electricity production, but that nuclear power will cease to exist in 20 or 25 years. There will be no contribution from nuclear energy. It is clear to anyone who thinks about these matters that renewables and nuclear energy are critical if we are to get carbon emissions down to merely 10 per cent per unit of output of today's levels in 45 years. To ignore the important contribution of nuclear energy to tackling climate change is reckless. Failure to tackle the nuclear energy issue will mean increasing prices of energy and electricity and increasing prices for aviation and using cars—all of which will happen anyway, but which will be even worse.
	The case for nuclear energy is now indisputable. It is one of political will and ambition. A Government who can have the ambition to reduce carbon emissions per unit of output by 90 per cent must surely have the ambition and confidence to recognise that that will not be achieved unless the nuclear energy issue is addressed.
	So what is required? The noble Lord, Lord Jenkin of Roding, summed it up. It wants certainty of government policy and it wants governments of all persuasions in future to be not hostile but supportive. It wants clear regulatory frameworks that offer certainty and it wants policies that have a timeframe consistent with the huge capital investment required with nuclear energy. The consultation paper in my view, for the first time in a long time, offers a ray of hope. Let us hope that the hopes are realised.

Baroness O'Cathain: My Lords, it is a great privilege to thank the noble Lord, Lord Turnbull, for a first-class maiden speech. The official biography of Andrew Turnbull is, as one would expect, of stellar proportions. Educated at Enfield Grammar School and Christ's College, Cambridge, he became an economist—a member of that illustrious group, like many of us here, a "dismal scientist". There is nothing dismal about the noble Lord, however. He has a wonderful sense of fun, as witnessed by several of us at the Bloomsday celebrations in the Irish Embassy last June, when he made the Irish-born in the gathering feel totally inadequate by his amazing rendition of Joyce. I do not think that I should go any further. Another humorous occasion was when he was asked by a journalist about club membership—was it Pratt's, Boodle's or White's? No, it was Tottenham Hotspur.
	The first steps in the career of the noble Lord, Lord Turnbull, were as an economist in the service of the government of Zambia, shortly after independence. A close friend of mine told me that he played a significant part in the economic development in that country at a seminal time in its history. He has kept up his links there. I feel that it is not out of order to quote my friend's assessment of him:
	"He is very upright—there is a great morality in this man".
	My friend has never yet been proved wrong.
	His career in the Civil Service in HM Treasury seemed to be marked by major promotion every two to three years, but I am afraid that his promotion here will not be as advanced. His career culminated in the role of Cabinet Secretary and Head of the Home Civil Service from 2002 to 2005. Throughout his career in the Civil Service he was regarded as an administrative reformer. Perhaps he can come to our help here, too. To the honours of CB, CVO and KCB is now added the peerage—he is a great addition to our House. We welcome him and truly hope that he will continue to contribute at such a high level, as he did today, for many years to come.
	I also thank my noble friend Lord Jenkin for being lucky in securing the ballot for this debate, and for being perspicacious in choosing such a topical issue.
	We have been around this course many times—probably too frequently—but at least that shows that we are persistent and consistent. We have raised the issue of nuclear time and again, but, to give credit where it is due, the Government have listened and acknowledged that nuclear will almost certainly be part of the solution to the two big problems facing us—the security of our energy supplies and the issue of clean energy, which of course means a reduction in carbon emissions to counter their terrifying effects on the climate.
	The consultation document, Our Energy Challenge, is a step forward; but time is of the essence and that sense of urgency does not seem to have permeated the conscience of the Government. Why not? Is the subject in the "all too difficult" basket, or is it a case of, "It won't be our problem and we can muddle along for a few more years before we are forced to take a decision"?
	Lest this is regarded as unfair, just let me list the evidence. In 2003, there was an energy review. In 2006, there has been a consultation document with, I grant, a cut-off time of April for submissions. But a promise on page 15 of the document says:
	"DTI will publish revised projections for the UK shortly together with updated assumptions for future fossil fuel prices . . . Comments will be invited on these projections and assumptions, which have been used to inform the consultation document".
	How long will that take? We have publication, then consultation, then review of responses on projections and assumptions, on top of the consultation on the whole document. More worrying than all this is the fact that this excellent background data publication nowhere mentions any date at which a decision will be taken to put an energy policy, as opposed to an energy review, in place and to take action to start proper provision for secure and clean energy for our country in the long term.
	Many years ago, as a very junior young economist in business, I was told that above all one should avoid "paralysis by analysis". I suggest with some trepidation that the Government should give some thought to that quotation. This is not in any way to decry the document. There is a brilliant analysis of the past, entitled "Progress So Far", but what about the future? The graphs showing future trends are based on, as the document says, "current measures only". The details of emissions by sector are just an attempt to decide what is likely to happen, although the document states:
	"An important input for the Review will be work currently being done on comparative costs of emissions reduction"—
	yet another review and yet more delay before even an attempt is made to formulate policy.
	I know that the noble Lord, Lord Turnbull, said in his wonderful maiden speech that we should not rush this thing too much, but, as the right reverend Prelate said, the lights will go out. It is no excuse to state, as the document does, that:
	"One source of uncertainty in our projections is that we do not know when new technologies might begin to make a material contribution to our generation mix".
	We will never know. What we do know is that new technologies will always be developing.
	The impression is—I hope that it is only an impression—that the Government want to keep all their options open until technological development stands still. That will not happen. The document goes on in this vein, analysing the past and current state and making feeble attempts to forecast trends, but always with the caveat that another review or piece of work will clarify the situation. Where is the courage to be upfront and propose policy, and when will that happen?
	The window of opportunity to take firm decisions on the nuclear issue is closing fast. Electricity generation from nuclear will have reduced from its current level by a third by 2012, which is only six years hence, and will continue to decline inexorably from there. Even if a decision to give the go-ahead for new nuclear installations was announced today, it would be at least 2016 before such installations could be adding to electricity generation. In the interim, we will have to rely more and more on methods of electricity that will add to carbon emissions overall. Is this a situation of which the Government, or any of us, can be proud? Can we even regard it as progress?
	An additional concern is that the gap is not just in nuclear. A similar situation pertains in generation from coal-fired power stations, where the gap is likely to be a 40 per cent reduction by 2020. Yes, I know that such a gap will not have a deleterious effect on carbon emissions, but it will be filled by other carbon emission generation—namely from gas. The noble Lord, Lord Chorley, reminded us that gas has 50 times greater emissions than nuclear over the lifespan of the operation. I am highlighting these facts to draw attention to the reality that the new technologies of wind and wave power and all the other renewables, very worthy though they are—and I believe that we must have a mix of generation types—will in no way fill the gaps that are now known to us.
	It is irresponsible to delay. The future economic prosperity of this country depends on policies being proposed now. The current inability to devise a nuclear policy was described to me yesterday in this way: "We have stopped drinking in the last chance saloon and closed the shutters". We cannot rely on over 80 per cent of our electricity being generated by gas. Recent events in the Ukraine and only this week in Italy are a stark reminder of the unstable nature of contracts and actions in the gas-supplying countries of the globe. And why are we being like Janus, looking in both directions—committed to clean energy yet banking on gas, which has an inherent carbon emissions problem, while delaying a commitment to nuclear, which does not?
	Although our current nuclear capacity has had extensions to reactor lives, I am told that we cannot plan any more life extensions. We were the first in the world to use nuclear for domestic electricity generation—50 years ago, as the noble Lord, Lord Cunningham, said in a great maiden speech—but the nature of the facilities now is such that they are not capable of further life extensions. The new nuclear technology, however, would be much more efficient and would have great possibilities for life extensions.
	The Institution of Mechanical Engineers, in its response to the consultation document, states:
	"Current estimates indicate that the economics of new nuclear plants are robust and will not require financial support from the Government".
	The cost of nuclear has been a continuing concern but the Institution of Mechanical Engineers believes that, if the financial community regained its past confidence in the sector, there should be sufficient funds to finance nuclear projects, as well as projects in fossil fuel—of a low or no-carbon emission kind—and renewables. That is surely a policy option that should be investigated, actively, by the Government.
	For confidence-building, we need a strong commitment form the Government that a comprehensive energy policy will be forthcoming in the very near future—at the latest, by the end of this calendar year. My noble friend Lord Jenkin has given us a great opportunity to push this seriously and now.

Lord Lea of Crondall: My Lords, I should perhaps first declare an interest as patron of Trade Unions for Safe Nuclear Energy and point out in that connection that the TUC and CBI are both—and have been for a long time—in favour of a balanced energy policy. For the TUC, this policy has been able to withstand many challenges, even that of Chernobyl in April 1986.
	I remember that at a TUC review at the time, and on earlier occasions, I had conversations with the noble Lord, Lord Cunningham of Felling, and visited his most beautiful constituency on several occasions. I remember walking around Wastwater; it could not be a more joyous place to visit.
	I congratulate the noble Lord, Lord Turnbull, on a predictably polished, level-headed and far-sighted contribution. We look forward to many similar contributions—perhaps on easier subjects, like transport policy and congestion charging or, as he has experience of Zambia, on Africa. There is no shortage of scope.
	The general perception of the public is without doubt that it is the Government's duty to keep the lights on, as the noble Lord, Lord Jenkin of Roding—who we congratulate on this debate—will ruefully remember from 1973-74. It is not the perception of the public that it is the Government's duty to ensure an adequate supply of dog biscuits. It is worth seeing why it is necessary to say what the limitations of market forces are in this debate. There is certainly no wider social market externality that I can see in the supply of dog biscuits. But the question of what a market is, and what comes into it, is central to the arithmetic of the different forms of energy. I congratulate the DTI on its transparent approach to this and gently remind the noble Baroness, Lady O'Cathain, that the Labour Party's precept is "softly, softly, catchee monkey".
	Another factor is that a lot of the long-term calculations in the equation of generating costs per kilowatt hour were done at a time when gas was 23p per therm. The last time I looked, it was 55p per therm. One does not change the arithmetic every time the spot price changes, but it is self-evident that the long-term change in gas and oil prices will change the balance of advantage in the arithmetic towards nuclear.
	To go back to dog biscuits versus keeping the lights on and why market forces have to be seen in a different light, we all recognise that there must be an energy policy. We need to consider the market externalities and how we bring in such questions as carbon dioxide. I have read a lot of the Green lobby's submissions, and it has been a little inconsistent. It thinks that energy policy should be market forces, and nothing but market forces—of course we say, "no subsidies"—but in other respects it demands as a central item of policy that all the environmental externalities be brought within "market forces". Our Kyoto obligations should also be brought in as market externalities in terms of "market forces". I agree with the noble Lord, Lord Jenkin, and other noble Lords who have called for the renewables obligation to be drawn to the attention of the Treasury as something worthy of applying to the nuclear industry.
	As the noble Lord, Lord Woolmer, said, a 60 per cent reduction in carbon in 50 years is, if not almost unbelievable, certainly getting on that way. It is difficult to see how we are going to do it. I was a member of the round table on sustainable development after Rio de Janeiro in 1991 and a member of the government delegation to the US summit. I was on a committee with the Chinese and others and at that time we were saying that the Chinese and the Indians had to be brought on board. This is not a question of saying to the Chinese and Indians, "Stop your economy growing. Pull up the drawbridge". We must put a lot more leverage on the Americans, along with the Russians. President Putin is a very far-sighted player of this poker game, which is why he, with a cold Siberia in his backyard, wants to be part of Kyoto. He knows the name of the game.
	The question is not whether we develop the nuclear industry, but whether we shut it down because if we do nothing, we are shutting it down. At the moment, it supplies 20 per cent of our needs; in 2020, it will be seven per cent; and 75 per cent of all electricity generating sets, whether coal, nuclear, gas or oil, must be replaced within 10 years. I have some sympathy with the noble Lord, Lord Taverne, in calling for a lot more political courage in telling people that it will not be possible to blow London up as if it had been struck by an atomic bomb. Although public opinion is moving in a more neutral to positive direction, it is the responsibility of my friends in the Government to say that the worst case scenario is something a little like Chernobyl and that all the ideas about the genetic effects of low levels of radioactivity are scientifically unfounded.
	The other public opinion point which has to be brought out much more into the open is about legacy waste and, indeed, military waste. We all know how the nuclear industry started, but it is there now and I support its development. But even creating 40 per cent, not just 20 per cent, of electricity by nuclear is only a blip on the amount of legacy waste that we have to deal with. The ethical questions raised by the right reverend Prelate the Bishop of Southwell and Nottingham cut both ways. We have ethical consideration about CO2 for the next thousand years.
	In conclusion, I remind the House that at the end of the Callaghan government, of whom my noble friend Lord Cunningham was a member, we had an energy commission with all the stakeholders. It is a pity we do not have such a body now. We need to secure the maximum amount of stakeholders within the big tent, and I hope that the Government will appreciate that that is the way to maintain a consensus as we go along.

Lord Tombs: My Lords, I congratulate the noble Lord, Lord Jenkin, on giving us the opportunity to discuss nuclear power as the pivotal contributor to our future energy strategy. I should also like to congratulate our two new colleagues, the noble Lord, Lord Cunningham, with whom I have spent many hours on energy strategy in the past, and the noble Lord, Lord Turnbull. They will come to see that discussion of energy matters is a recurring feast, if that is the appropriate word, in this House. I hope we shall hear from them again on this subject.
	The latest government consultation document, modestly titled Our Energy Problem, makes no pretension to be a strategic one. Indeed, it follows its predecessors in its somewhat rambling, dissertational style and offers neither analysis nor guidance to its unfortunate consultees. I do not understand its purpose, if, indeed, there is a purpose, but I fear that it is likely to disappoint the Government in their apparent hopes that wisdom will be achieved by an absence of leadership.
	The claim that this document is necessary because of unforeseen changes rings hollow. There were many voices in this House and elsewhere warning the Government of the limitations of their heavy reliance on wind power to meet the CO2 reductions envisaged, as there were about the perils, in security and financial terms, of their blind reliance on gas as the main fuel of the future.
	Overlying all of this was the naive belief that the internal forces of a manipulated market mechanism would provide a long-term strategy for the energy market. As though that was not enough, there was an astonishing belief that international gas markets would operate freely. Toytown economics indeed, made worse by political procrastination and, I am sorry to say, prejudice. But there are some signs that the threat of climate change is becoming more widely recognised and there seems to be a growing recognition worldwide that nuclear power will be a part of the solution. We should therefore seek ways of reinforcing these nascent indicators by suggesting ways of facilitating the resumption of nuclear power station building.
	The first requirement is for government to abandon the anti-nuclear measures which have, for a variety of reasons, become embedded in government thinking and actions. These are well known, but I will repeat them in order to refresh ministerial memories. They are: the imposition of a CO2 tax on a non-CO2 producing industry, a point made by the noble Lord, Lord Jenkin; the imposition of selectively punitive local rates on nuclear generation; the exclusion of nuclear generation from the national fossil fuel obligation; and, more recently, the oppressive financial terms imposed on British Energy by a government "rescue" of the company from a crisis purely of the Government's making.
	We need a government approach shorn of the hostility and procrastination of recent years and concerned with the solution of problems rather than their creation. Three problems have often been mentioned as difficulties in the way of resuming a nuclear power programme. I should like to deal with these in turn, in a constructive attempt to help the Government escape the artificial situation into which they have talked themselves.
	The first is that of affordability. The economics of nuclear power have been greatly improved by the new generation of reactors, which are substantially smaller than their predecessors, as well as being more inherently safe. Ample information of high quality is available around the world, but the Government seem to prefer in-house assessments by such groups as the PIU, which bring little to the examination beyond their obvious discomfort with the political climate in which their analysis is conducted.
	The charge has been made that investors show no great willingness to promote new nuclear power. That is hardly surprising, given the lavish subsidies for wind power: £30 billion—I will echo the noble Lord, Lord Cunningham, and say £30,000 million—to the year 2020, according to the most recent government estimates. There is also the short building time and fool's gold of cheap gas, which have dominated industry policy for the past 10 years. The recent acknowledgement by the noble Lord, Lord Sainsbury, that nuclear power can now be regarded as a renewable source invites a logical response in the form of inclusion of nuclear power in the NFFO.
	The second reason for delay has been the safe disposal of nuclear waste, about which we have heard quite a lot today. I had the honour of chairing a Select Committee of your Lordships' House which reported in March 1999 in favour of deep geological disposal. That solution has been widely adopted internationally but has been studiously avoided by the Government for the past seven years—largely, I fear, as a means of that procrastination, to which I and many other noble Lords have frequently referred.
	Finally, there is an apparent belief that nuclear power is opposed by the public. Recent surveys have shown a steady improvement in public acceptance, aided by growing concern about the likely effects of climate change. I shall dwell on the topic of public acceptability by recounting two experiences from my period with the South of Scotland Electricity Board, a doughty enthusiast for nuclear power, in the mid-1970s.
	At that time, we were applying for permission to build a nuclear power station at Torness, on the east coast. Local concerns were met by introducing local inhabitants to those from Hunterston, on the west coast, where we already had two nuclear stations. Indeed, at the time, there was a proposal to build a gas terminal on the Hunterston peninsula, which prompted local residents to send me a petition asking for a new nuclear power station instead. Since then, Torness has been built and nationally we have had a further 30 years of successful operation of UK nuclear power stations. The evidence shows a ready acceptance of existing local communities, who have discovered that nuclear power can be a very good neighbour.
	At about that time, in partnership with Sir John Hill, then the chairman of the UKAEA, I approached the late Lord Porter, who was then director of the Royal Institution to hold a debate at the institution on the merits and problems of nuclear power. The debate lasted for three days and was open to the public, It dealt with uranium mining, uranium enrichment, safety, waste disposal and weapons proliferation. Speakers for the industry were matched with opponents from environmental organisations. Understandably, the event attracted substantial media interest and two live television debates followed.
	The result was a triumph for nuclear power. The issues of concern were dealt with fully and in public, and the necessarily technically complex issues were explored patiently and thoroughly in a way which had never been attempted before and was a resounding success at the debate itself, on television and in the press.
	I would encourage the industry today to repeat the experience and so demonstrate that there are satisfactory answers to the public's apprehensions, rather than adopting a defensive stance in responding to alarmist media statements which make their impact before a defence can be mounted.
	Finally, my Lords, let us recognize the reality that nuclear power, as a baseload contributor to our energy demand ,can allow us to build a less polluting society and at the same time preserve our strategic and economic independence in the energy field. It also offers, through hydrogen production, the best hope available of tackling that mammoth polluter, transport.

Lord Redesdale: My Lords, I start by thanking the noble Lord, Lord Jenkin, for his rather inspired speech, although I think I will leave the love analogies to others. I also thank the two maiden speakers for their contributions. The speech of the noble Lord, Lord Cunningham, was excellent. I knew that I would have to mention him, so I looked at his entry in Dod On Line. Perhaps I should mention that the noble Lord has a great deal of humility. Under the heading "career" he states that he was a research academic at Durham University, and that is it. He has left out of Dod completely his political career, which is an inspired move. I look forward to hearing more speeches from the noble Lord, Lord Turnbull, after his illuminating contribution. He understands the arcane workings of decision making from the inside of government.
	Like the noble Lord, Lord Tombs, I read the consultative document Our Energy Challenge in preparation for this debate, a fine document featuring a picture of the planet on the cover. That is always a worrying aspect. But given that it is a consultation document, I did not bother to read most of it. Initially I went to page 7, which lists the key questions for review. Those key questions guide consultees on what they are supposed to be answering. It is clear, as the noble Lord, Lord Jenkin, pointed out, that the whole purpose of the consultation paper is set out in the third question:
	"The Energy White Paper left open the option of nuclear new build. Are there particular considerations that should apply to nuclear as the government re-examines the issues bearing on new build, including long-term liabilities and waste management? If so, what are these, and how should the government address them?".
	I believe this document makes the point that the Government are looking at new build. As many noble Lords and many in my party know, I am sceptical about the case for nuclear. I must say that the nuclear industry has done an incredible job over the past 10 years, taking itself out of a position where it looked like nuclear power stations were to be phased out without reprieve to one where it is now seen almost as an environmental champion, coming forward to save the planet. Moreover, I accept that nuclear will have to be reconsidered in the light of global warming.
	However, a few questions should be asked, ones that the nuclear industry will have to answer. First, I want to ask a question of the Government. The whole debate assumes that the consultation will be taken into account and weighed up, but a number of people have said that for new nuclear build to move forward, primary legislation might well be needed and therefore Parliament will make the decision. But I am not certain that that is the case. If it is not and the consultation reveals a majority in favour of new nuclear build, does it mean that this document will set the parameters for a White Paper leading to the Government declaring that they will move towards nuclear new build? Will Parliament be given the opportunity to debate the option of any nuclear new build, or will the decision be taken? The Prime Minister has already stated that he is keen on the argument, but that might not remain the case because costs will come into it and the decision probably will not be taken before we have another Prime Minister. For that Prime Minister, this will certainly have cost implications.
	It has been stated that nuclear is needed to keep the lights on. This has been said in three debates in your Lordships' House, but I challenge it. Although nuclear makes an important contribution to the energy basket as it is made up, it does not provide the baseload. That is supplied by coal and gas, and in the future gas will embrace a larger percentage. Some 19 per cent of our energy is supplied by nuclear generation. Therefore it could be said that to take out the nuclear option would not be to remove the major component.
	There is also a question mark over how many nuclear power stations will have to be built significantly to increase the proportion of energy supplied by nuclear. The present figures refer to four new nuclear power stations, but they certainly will not replace the 25 per cent of energy that was provided by nuclear.
	If we are going to build a large number of power stations, it raises the question of who will build them. As the noble Lord, Lord Jenkin, pointed out, Westinghouse, of course, has now been sold to Toshiba. One of the reasons given for that was the risk implications of building nuclear power stations abroad and the fact that the Treasury would not want to underwrite them. But if the Treasury is unwilling to underwrite the risk factors of building nuclear power reactors abroad, who will underwrite the new nuclear build in this country? If the new nuclear build is to take place, will the Treasury underwrite it or will it be underwritten by whoever builds the new reactors?
	I believe that nuclear reactors could be built a great deal quicker than many people set out. Of course, if the new nuclear reactors are built on sites where there are nuclear power stations at present, that will get rid of many of the question marks over planning. The four new nuclear power stations that have been built in China have come in under budget and under time.
	But, as was pointed out by the right reverend Prelate, nuclear power still has two hurdles to face, the first being that of waste. It has been pointed out by my noble friend Lord Taverne that waste is now an issue of lesser magnitude. Of course, much of our nuclear waste in the past was built up through military activities, but it is still an issue. It is not any less difficult to deal with; we do not have a solution. A deep-level storage facility is not a solution but a management factor. Do the Government have any estimate of the costs of such deep-level storage facilities?
	The other hurdle is that of cost. We have referred to many of the aspects of cost, but I am quite concerned about the cost of electricity. If we build these major nuclear power stations, which will last for 50 years—and some of them could last for 50 years—we will need to discuss how we are to set the price for the electricity produced by them. That will have an interesting effect on the cost of electricity from other suppliers. It seems strange that while we are discussing the liberalisation of the gas market in Europe—and I press the Government to do as much as it can to move forward on that issue; it seems ridiculous that we are paying vastly inflated prices for gas when compared with other European customers—we would not expect a set price for energy from the gas suppliers but we might from nuclear.
	The noble Lord, Lord Turnbull, said that one of the issues that have to be addressed is that the present power stations produce carbon waste. That factor has to be taken into account and I would press the Government to look at the work of Professor Peter Hall of Strathclyde University, who is looking into methods of carbon storage and capture. The aspect of clean coal should be looked at. Professor Hall deals with prototype work carried out in Scotland by industry and the University of Strathclyde to sequester carbon dioxide in unmineable coal seams 3,000 feet down under the central belt. They are about to undertake a two-year programme which would see flue gas similar to that produced by the Longannet coal-fired power station injected deep down. As a by-product, the methane gas which would then be pumped to the surface could be burnt, the sales revenue from which could cover the drilling costs. Billions of tonnes of carbon could be placed underground safely. It would bond with the coal and therefore would not come to the surface. A question for the Government is: why are they not investing more in clean coal-fired technologies? If we are to make coal and gas—which produce so much of our energy—carbon neutral and prevent global warming, we have to start investing seriously in this technology.
	Will the Government look again at co-fired biomass which is under threat due to the capping of the renewable obligations? This issue has to be addressed; it is one way of making clean coal sustainable if biomass is to be grown and burnt alongside coal. However, the big changes to the renewable obligations, where a cap on this is being considered, are not supplying the amount of security for farmers to grow the stuff in the first place. We are looking at another collapse in the biomass market.
	I was going to talk about wind and the possibility of a new 10 megawatt turbine that is under development, but I have run out of time. However, I will finish on this one point. I understand that the energy review is looking at a basket-case of energy.

Baroness Miller of Hendon: My Lords, like other noble Lords, I congratulate my noble friend Lord Jenkin on securing this debate and thank him for introducing it, as he always does, so well. It is also a pleasure to have heard the two maiden speeches. I hope that both noble Lords will speak very many times, particularly on this subject, on which they seem to have such a lot of expertise. Indeed, there is a lot of expertise on this matter on all sides of the House.
	The debate is particularly timely as the Government's consultation has only just been published. My party has just announced that it will conduct its own separate energy review. No doubt our energy review will take into account the various views expressed today by your Lordships.
	We have to ask ourselves why, less than three years after a White Paper which was to be the road map for the Government's energy plan for the foreseeable future, they are coming back with a fresh consultation? The answer to the question about the need for this consultation is to be found in the refreshingly frank executive summary to the Government's consultation paper. Let me quote just a few of the phrases:
	"Fossil fuel prices . . . are now much higher than at the time of the White Paper . . . The UK has become a net gas importer sooner than expected and is also becoming a net oil importer . . . Progress in introducing truly open energy markets in the EU has been slow".
	The last point underlines the warning that we have given Ministers several times, that for gas supplies, we are at the far end of a long supply line. As we have seen in the recent Ukrainian crisis, what we get is only what the Germans, the French and others are prepared to allow to pass. Three German and French energy companies are facing an EU inquiry into allegations that they have abused their dominant positions. Today the underuse of the interconnector from Belgium when we were having gas shortages was reported. We pay for this, in the form of rocketing fuel prices.
	As part of their diversity programme, the Government are encouraging the building of 10 new gas-fired power stations in the next five years, to serve a quarter of the population.
	In the consultation paper, the Government coyly admit:
	"There has been a general heightening of sensitivity . . . affecting perceptions of the security of supply from major exporter countries".
	I am not the sort of person who says, "I told you so", but I and many others, as the noble Lord, Lord Tombs, has said, have been saying so to the Government for a long time—not once, but on numerous occasions. In the passages I have quoted, the Government are confessing that the assumptions on which they have based their entire energy policy, as contained in the White Paper, were disastrously wrong. Furthermore, as we have repeatedly said, they now realise that dependence on supplies of imported gas and oil from unstable and possibly unfriendly regimes was one day going to make us a hostage to fortune.
	The dispute between Russia and Ukraine had enormous repercussions. It led to the Government threatening the industry with the possible introduction of a three-day week. More than that, it indicated how the Russian Government are ruthlessly prepared to use gas supplies as a political weapon. The reason why my party believes that a separate review is needed is the same as the Government's current review of their own policy. As we know, the policy as set out in the White Paper was a potential disaster, but we all recognise that we need diverse sources of energy if the Government are to meet their legal obligation to ensure security of supply. As my noble friend Lady O'Cathain mentioned, we believe that the Prime Minister has been listening and is possibly changing his mind.
	Our review will look into every aspect of the diversity of supply, whether fossil fuels, biomass, carbon capture, clean coal, wind and wave power and the important question of energy conservation. Important as all those topics are, we need to know what will happen now. The problem with carbon is very fast-moving. Even the president of the greatest fuel-using country on the planet, the United States of America, has recently warned his fellow citizens that they have to reduce their dependence on imported power supplies. While the Government's new consultation is about the reappraisal of what the paper calls "Our Energy Challenge", the role of nuclear energy is the aspect of the challenge that my noble friend examined, as have many others, in the debate.
	In response to persistent questioning on nuclear power by my noble friend, by me, indeed by Members all around the House and certainly Members on the Government Benches, we have always heard the answer, "Well, we are keeping the nuclear option open". I believe that they are now thinking that they have to do something about it. If that is so, that is all to the good. I refer, of course, to new nuclear build to replace the present installations which, currently, contribute to a major part of our energy requirements but which are due to be decommissioned in the not-too-distant future. That is what the debate is specifically about.
	As this is a timed debate, I do not have the time to reiterate the many advantages of nuclear power, especially for the United Kingdom, which, in a generation, will be reduced to the same state as Japan of having no indigenous fuel supplies of its own. I simply add, on the environmental aspect, something of the new danger that arises from the constant burning of fossil fuels. We all know about the destruction of the ozone layer and the effect of global warming on the climate and especially on the ice caps in the Arctic, the Antarctic and Greenland. We are also aware of the problems to trees and plants caused by acid rain. However, it now emerges that the sea is becoming more acidic. That is an international problem. It is significant that China and India, which contend with the United States and Russia to be the greatest polluters, are already taking steps to use more nuclear power as an alternative to carbon fuels.
	I would like to use the little time available to me to deal with some of the anti-nuclear myths and deliberate distortions that surround debates on the subject. First, there is the argument that constructing and supplying nuclear power stations uses more energy than it produces. I shall not go into detail on that because my noble friend Lord Jenkin has already mentioned it.
	There is also the suggestion that high-grade uranium ore will soon be exhausted. I hate to take issue with the right reverend Prelate the Bishop of Southwell and Nottingham, but I have been advised that that is not true. In fact, the available supplies that we have will certainly outlast the proven reserves of oil and gas and that is without taking into account the recycling of the so-called waste into MOX fuels, which increasingly are used in many water reactors.
	The cost of decommissioning plants is also greatly exaggerated, especially if one assumes that every obsolete station is to be returned to a greenfield site. I believe my noble friend mentioned that, as did the noble Lord, Lord Tombs. The policy for new nuclear stations should be, wherever possible, that they be built on the sites of the old ones. That would certainly shorten the time required for planning and avoid NIMBY objections. People in those areas are happy to have them because so many jobs depend on their being kept in the area.
	The Independent recently repeated the myth that there are 2.3 million cubic metres of nuclear waste. We all know that 90 per cent of waste is low level. That is what we are really talking about. Only one six hundredth of 1 per cent is high level. We need as a realistic contribution to this debate the expected recommendations from CoRWM and not the distorted figures published by a newspaper.
	The clock is ticking, and ticking very fast at that. By their own admission in the consultation paper that I quoted, the Government have got totally wrong all those assumptions on which current energy policy was based. Even today, the question of nuclear power generation is buried away on page 63 of the consultation document as a sort of reluctant afterthought, but I suggest that the Government will look at it differently. If the Government have not finished with keeping the nuclear option open, what do they propose to do?

Lord Jenkin of Roding: My Lords, in the two or three minutes before our time runs out, I express my very warm thanks to all those who took part in the debate. It has been a worthwhile debate, with a lot of extremely valid points being made. There can be little doubt that we have made some progress when the noble Lord, Lord Redesdale, has finally agreed that the nuclear issue has to be examined. What one of my noble friends in an earlier debate called the Liberal Democrat Party's "Clause 4 moment" may have arrived.
	I am grateful to the noble Lord, Lord Davies of Oldham, for his answers to my questions. He said two things; one of which greatly encouraged me. He said that the issue of waste will be settled this year. We shall want to hold the Government to that. He also said that the review does not change the principles on which we are conducting energy policy. If it does not, the review is simply not worthwhile.
	Perhaps I may quote one sentence from the stack of evidence I used in preparation for this debate. It states:
	"Current investor uncertainty in key issues such as Government future targets for carbon dioxide emission reduction is inhibiting new build".
	Unless the Government set a long-term consistent policy on carbon, everything else will fall by the wayside. I hope that the Minister may have taken that message home.
	I thank all noble Lords and extend congratulations to the two maiden speakers and I hope that we shall hear them again, particularly the noble Lord, Lord Turnbull. He was offered eight minutes and managed to do it in four. That is an example which the rest of us should be prepared to follow. I beg leave to withdraw the Motion for Papers.

Baroness Buscombe: My Lords, we welcome the regulations and the general direction of the policy on school financing that they represent and deliver. The problems over school funding in 2003–04 were a salutary lesson for the Government and civil servants and, indeed, for us all. It is important that we put in place a system that combines certainty and stability with a degree of local flexibility that does not go on to undermine that certainty and stability.
	We welcome the principal policy behind the regulations, the new ring-fenced dedicated schools grant, the multi-year budgets and the rationalisation of standards grants. We also welcome the rationalisation into one set of regulations and the fact that they cover two funding periods—2006–07 and 2007–08—with the intention of having three-year funding periods in the future in line with the spending review cycle.
	Despite the simplification, however, school funding is still incredibly complicated. The Minister will know that my honourable friend in another place, Nick Gibb MP, says that, notwithstanding that he is an accountant, he finds the methodology confusing. There is an array of guidance notes on Teachernet. In theory, things should be relatively straightforward, but they are not. There is a guidance note on setting school budgets for 2006–07 and 2007–08 for local authorities and school forums—I find it very hard to say "school forums"; I am sure that it should be "school fora". There is a note on the single pupil count. There is guidance on the use of the dedicated schools grant to deliver more practical learning opportunities at key stage 4. There is a central expenditure limit technical guidance note, a central expenditure limit calculator, a minimum funding guarantee technical guidance note, and a minimum funding guarantee calculator. There is a new document—the School Finance Regulations 2006—and a "pupil projection toolkit". There is also a Learning and Skills Council proposal for sixth-form funding in 2006–07.
	Complexity adds to the difficulties that head teachers have in managing their budgets. It also decreases accountability and transparency. The complexity of the funding is a contributory cause of large numbers of schools running deficits. Will the Minister confirm that 1,866 schools are currently in deficit and that, of those, state nursery schools had debts totalling £277,000 in 2004–05, primary schools had debts totalling £34 million and secondary schools had debts adding up to £86 million? Will the Minister confirm that those figures on the amount of funds involved are right? Will he also confirm that 10 primary schools are in deficit to the tune of at least £247,000 and that 10 secondary schools had debts exceeding £858,000? Will he deal with the question put in another place by the honourable Member for Weaver Vale, and explain how many schools are sitting on reserves and what is the cumulative total of those reserves?
	The Minister talked about the single pupil count. The key regulations before us are Regulations 14 and 15, which require local authorities to use a single pupil count to calculate the individual school budgets. Why any school would want to remain on the five-twelfths and seven-twelfths system baffles me. The single pupil count is defined in Regulation 14(6) as the number of registered pupils at the school on 19 January 2006—a Thursday—for funding period 1, and on 18 January 2007, which is also a Thursday, for funding period 2.
	As the Minister explained, there was massive support for the regulations during the consultation. Some 53 per cent of people said that they were in favour of the principles, with 42 per cent against. The Secondary Heads Association, for example, said:
	"This is a sensible balance between predictability and flexibility and works well in many authorities already. There may need to be some local sensitivity and flexibility"—
	I think the Minister made that clear—
	"in the first two years as schools adjust—but eventually it works perfectly well".
	The Chartered Institute of Public Finance and Accountancy was also in favour of the proposals, but was unclear about the meaning of Regulation 21(3), which relates to the flexibilities in the formula as a result of changes to pupil numbers partway through the year—an issue, again, to which the Minister referred. Regulation 21(3) has been removed from the final draft of the regulations. Will the Minister therefore confirm that paragraph (3) was removed because it added nothing of substance to the remainder of Regulation 21?
	As the Minister said, concern was also expressed during the consultation about primary schools that operators staggered intake in the reception year and how that could affect funding if the count took place in January, with another intake arriving at Easter. In response, the Minister said that those concerns had been addressed in the finalised regulations. It is clear from Regulations 14(7) and 14(8) that pupils admitted in the summer will count towards next year's funding; that is welcome.
	When there are unplanned changes to or significant increases in pupil numbers, the Explanatory Note says that the regulations allow local authorities to provide funding from their central resources and that the department will issue explicit guidance about that. That guidance is right when it says:
	"In deciding whether a school needs an in-year increase in its budget for a pupil number increase, local authorities should consider the impact on the school's costs, rather than simply applying a percentage threshold increase in pupil numbers".
	It goes on:
	"Such an approach will take into account the need of schools to put on additional classes, and hence incur significant additional costs, and also what proportion those additional costs are of the overall budget of the school".
	That must be the right approach.
	The associated issue is that of deductions from funding when pupils are removed from a school's roll and attend alternative provision. The SHA stated:
	"A pupil leaving the school for whatever reason after the start of the year does not enable the school to make any appropriate savings. The removal of funding when a pupil leaves does not encourage schools to support the move to an alternative placement; nor is it an efficient way of funding alternative provision".
	Will the Minister set out how those concerns were dealt with in the final draft of the regulations?
	The Minister will be aware that my honourable friend the Member of Parliament for North Wiltshire, James Gray, was given assurances by the Minister for Schools in another place that the Learning and Skills Council is working on proposals for the expansion of schools. When will the LSC present its findings to Ministers?
	The decision to allocate teachers' pay grant money through the pupil numbers formula might adversely affect schools with a high proportion of experienced and effective teachers. According to initial calculations, the decision, if fully implemented in 2006–07, would mean a loss of revenue to the school of between £15,000 and £18,000 a year. Even if the change were phased in over three years, it would still have a similar impact in three years' time, because no retirements are anticipated in that period. Will the Minister say how such a school should deal with that issue, and whether there is flexibility in the regulations to assist schools in local constituencies, for example?
	On schools forums—again, I am sure it should be "fora"—and accountability, the Local Government Association expressed its view well. It stated that:
	"the LGA considers that Schools Forums have worked well as consultative bodies. It can see the benefits of giving them power to agree certain regulation changes in order for the local authority not to have to seek the permission of the Secretary of State. However it is against giving them decision making powers which should properly be the province of the local authority".
	The LGA makes a serious point about democratic accountability. Yes, there is a case for a formal consultation body made up of local head teachers and other stakeholders, or constituents, to advise policy makers and elected officials on decisions. Ultimately, however, such decisions need to be taken by people who are accountable to the electorate, however technical and detailed that process might be. Today's technical issue is tomorrow's point of principle.
	The National Union of Teachers is concerned. It states:
	"We do not agree with the proposal that local authorities need only consult their Schools Forum on changes to the local funding formula. Schools forums have an important role to play, but are not the only local stakeholders in education. Local stakeholders that are not represented on the Schools Forum, including unions and individual schools, need to continue to be included in consultation on changes to the funding formula. Such changes will have a potentially significant impact on individual school budgets".
	The SHA has also expressed concern in respect of the power that schools forums should have.
	Even though it may seem rather unfair to detain the House at such a time, will the Minister explain the changes in the regulations to the rules on prudential borrowing? These are complex issues and perhaps they should not be quite so complex. I hope that the regulations will be a first step towards simplifying the whole funding regime for schools. There is still much further to go, but we support this first step.

Baroness Walmsley: My Lords, I also thank the Minister for outlining and explaining the regulations. We are not quite as enthusiastic as the noble Baroness, Lady Buscombe. My attitude might be described, in the words of WS Gilbert, as "modified rapture". I welcome the fact that these two sets of regulations are to be amalgamated and will cover two financial years, but that makes the regulations very complicated, as the noble Baroness, Lady Buscombe, outlined, with guidebooks, toolkits and all the rest of it. Complexity may be necessary, but it is the enemy of transparency. It also presents problems for the growing army of school bursars. There have been numerous changes to school budgets in recent years, which make my head spin. I feel sorry for the poor heads and bursars who have to deal with them daily. Is the Minister satisfied that they have had enough training?
	We welcome the move towards multiple-year funding, since it brings more stability and allows schools and LEAs to plan services. However, it is worrying that more and more control from the centre is proposed in the regulations, cutting out the discretion of LEAs. A little local discretion remains, but the problem with ring-fencing is that LEAs that used to spend more on education than the Government were passporting may decide not to do so any more. According to the LGA, that is happening already.
	We must not just think of education spending as money for schools. We on these Benches think of schools as part of a wider education service providing and supporting education for communities. If we leave it entirely to individual schools to decide which of those services to buy into, we might end up with a central service that is not viable. Look at what happened to music services when individual school budgeting first came in. It also takes financial levers away from the LEA, which democratically represents the local community. The Every Child Matters agenda pulls together services to ensure that the child, not institutions, is the centre of spending and policy, which is quite right, but one must not assume that only the school is in a position to know what services local parents and young residents want and need. If all the money is ring-fenced to the schools, the Government will undermine education in its widest sense, so there is a point beyond which it is not sensible to go. I think we are rapidly reaching it.
	To some extent, I welcome the new powers given to schools forums, since at least they are local, unlike the Secretary of State. But if one looks at the membership of those forums, one realises that they are dominated by the schools' interests. It brings to mind the saying that "Turkeys don't vote for Christmas" when one realises that the LEA has to ask that body for permission to withhold money from schools for central services under Regulation 5(2). I note that if it can get the approval of its schools' forum, that should enable it to support the broader children's agenda to fund multi-agency activity in support of vulnerable children. I wonder whether that could be extended widely enough to include mental health and counselling services, such as the Place2Be initiative, about which I am very enthusiastic, as the Minister knows. I also wonder whether there is any limit on the amount of such funding that can be spent in the voluntary sector. What guidance will be given to schools about how to balance the purchase of maintained sector services with services from voluntary and for-profit providers who need a flourishing and predictable market or they will go to the wall? I do not think that can be done by individual schools. It has to be left to a body with a strategic overview and the financial levers to make things happen—in other words, a properly funded LEA.
	Perhaps I may ask the Minister specifically about music services. I looked carefully at the regulations and notes to see where the funding for these services came from—perhaps the officials in the Box could help us. I looked at Regulation 7 and Schedule 2 and I could not see it mentioned. I came to the conclusion that it must be covered by paragraph 32 of Schedule 2, but perhaps the Minister can confirm that. If so, I am concerned about the upper limit of 0.1 per cent of the school's budget that can be allocated to this group of non-specified services. Does this really give enough flexibility? I use music services as only one example.
	Another matter that causes me some concern is the new rule that pupil numbers must be determined at a single point in the year. What is the rationale for that, and is it for the benefit of schools or the LEA? I see that it takes away some of the discretion of local authorities, but, according to the notes, the stakeholder schools consulted thought that it would bring them a desirable element of funding stability. I note also that the regulations allow for changes resulting from staggered intake in primary schools from nurseries and pre-schools and for unusual and significant changes in the school populations to be funded by the LEA from central resources.
	However, I doubt whether most hard-strapped authorities' central resources can stand much of that sort of demand. I read in the notes that 53 per cent of consultees were in favour of this change but 42 per cent were opposed. I wonder why, with such a large body of opposition, the Government have not decided to pilot this new arrangement in a few local authorities before rolling it out all over the country. It could well be advantageous to schools. Why have the Government decided not to try it first, just to make sure?
	I echo some of the concerns expressed by the noble Baroness, Lady Buscombe, about alternative provision for excluded pupils. I am very concerned when any pupil is excluded from a school and does not go immediately, not after five or six days or whatever it is—I think it is more than that at the moment—into alternative provision. If you are to have that availability, you must have spare capacity. That means that you have to look very carefully at how that alternative provision is funded. It could well be that not enough is going into that alternative provision. I wonder how these regulations will affect that. I hope the Minister can help me with these questions.

Lord Adonis: My Lords, the noble Baroness gave these proposals a welcome—what she described as—"modified rapture". From her, I take that to be the highest possible praise for measures being introduced by the Government. I take that compliment in the spirit in which it was intended. I am also very grateful to the noble Baroness, Lady Buscombe, for her remarks. I will not pretend that I can answer all these detailed questions. In particular, I am looking in vain for the note about music services and which regulation they come under, in terms of the ability to retain central funding. Rather than blather, I will give specific replies to a number of the specific points.
	On the major points raised, there is clearly a philosophical issue, on which I suspect the noble Baroness, Lady Walmsley, and I will not agree, which is whether having some degree of ring-fencing of local authority budgets in respect of schools is a desirable step. We believe that it is because it protects the interests of schools and ensures that the funding the Government have allocated to education—what they regard as their top priority—is spent in local authority budgets on that basis.
	I understand the argument against, which is that this restricts local authority discretion to some extent. I do not believe that, as it were, restricting local authorities' discretion in terms of allowing them to spend less on education than we would like is a worthwhile freedom for local authorities. Naturally most local authorities do not either, which is why I do not detect a great deal of heat in that issue.
	The noble Baroness said that the fact that we stipulate a minimum that local authorities must now spend means that they will regard that as a maximum and not spend on top. The whole point of elected local authorities is that they are accountable to their voters. My sense is that local authorities in areas where education spending is felt to be inadequate will be under every bit as much pressure to increase that funding and ensure that their schools are properly supported after the minimum guarantee and the ring-fencing is in place as they were before. That is very much a matter between them and their voters. We have local democracy alive and flourishing and do not believe that simply stipulating the minimum that they must spend in any way disincentivises them from spending more.
	The noble Baroness, Lady Buscombe, raised two broad issues to do with balances and schools forums. I cannot answer why we have gone for one use of the plural rather than the other, so that is something else about which I shall have to write to the noble Baroness, but I imagine that that was the result of long and anguished deliberations by officials on the appropriate word, and that there is some rationale for it.
	First, on financial balances, of which a great deal of play was made in another place, we should get the matter in perspective. The figures given by the noble Baroness this afternoon, repeating those raised in another place, related to the 7 per cent of primary schools and 16 per cent of secondary schools which have deficit balances. That means that the overwhelming majority of schools are not operating in deficit. The noble Baroness asked me for the overall surpluses. The gross surplus at the end of the last financial year across all school budgets was £1.7 billion. When the deficits are included relating to the small minority of schools that are running deficits at the moment, the net surplus was £1.5 billion. That relates to a total spend on schools through local authorities of £27.7 billion, so that figure is not unreasonable, especially given that many schools, accumulate balances specifically because they want to fund priorities in the period ahead, including capital and other priorities, for which it is perfectly sensible for them to retain balances from one year to the next. But local authorities have the power to intervene if they believe that balances are excessive. In exceptional circumstances, they can require steps to be taken. In very exceptional circumstances, they can suspend the power of the school to run its delegated budget because they believe that it is not doing so with sufficient prudence.
	So if we consider the situation at large, we do not believe that the deficits are unreasonable or that we have a serious problem with excessive numbers of schools running deficit balances. In individual cases where school budgets are not being properly managed, local authorities have a legitimate and very important role to intervene to ensure that management is brought under control.
	The noble Baroness, Lady Walmsley, mentioned the important role of bursars. I simply note in passing that until recently, there were very few bursars in schools. We regard it as an immensely worthwhile step forward. After all, secondary schools are in many cases running budgets above £5 million a year and employing more than 100 staff. Because of the development of extended schools and new funding streams to meet the Every Child Matters agenda, which the noble Baroness so rightly emphasised, schools are receiving substantial additional funding from a variety of sources, including regeneration funding. They are managing an ever-expanding workforce and it is immensely important to have proper, professional support to do that.
	Through the National College for School Leadership, we are providing dedicated training for bursars. We provided the first ever training course in financial management for schools for the specific training of bursars. The number of bursars in secondary schools, in particular, is rising rapidly. We see that as a thoroughly welcome development. It shares the burden of school management more widely, so head teachers are not solely responsible, as they often were before, and it professionalises the operation enormously. Although I much regret to say that not many schools are lucky enough to have either bursars or governors with the financial expertise of the shadow Minister for schools in another place, to whom the noble Baroness, Lady Buscombe, referred, from many years reporting on the Financial Times, it is not my view that financial reporting and regulation in the private sector is somehow easy to understand, non-complex and that, in stark contrast, we have a morass of complicated guidance and regulations in the public sector.

Lord Adonis: My Lords, I agree entirely with the noble Baroness on the point and I believe that this is a welcome professionalisation of the financial management of schools.
	Having dealt with the issue of school balances, I turn to school forums and their powers. There has been some misunderstanding in one respect. In no way do we seek to restrict the legitimate powers of local authorities. The decision-making powers for school forums as laid out in these regulations affect the discretion which currently resides with the Secretary of State in terms of variations in arrangements for school budget shares, issues such as the definition of the minimum funding guarantee, the central expenditure limit and the ability of local authorities to vire funding between the schools budget and the other important priorities referred to by the noble Baroness, Lady Walmsley. I know that she has in mind that the great evil in the education system is the Secretary of State and the Department for Education and Skills. In so far as that is indeed the case, we believe that this evil is being reduced by giving school forums additional powers which they can take on and operate in conjunction with local authorities.
	I should also stress that we are not talking about local authorities having to agree with school forums or schools on the retention of any funding for central services. It is funding only over and above those maximum levels prescribed in the regulations. We believe that the levels are quite generous because in recent years school funding and funding for central services have been rising substantially ahead of inflation. So we do not believe that this is an onerous burden. However, it is important that local authorities and schools are engaged in dialogue and that schools are properly represented with a strong voice so that they are able to discuss with their local authorities issues to do with the composition of central budgets where they go beyond a certain level.
	Schools have generally welcomed the role of school forums and are playing an increasingly active role in them. They see them as an important way of discussing with their local authorities the planning of services and a wider set of issues relating to the school system. When we produce the forthcoming education Bill, the school forums and the admissions forums, which operate in a similar way, will be strengthened so as to reflect the important role they play in representing the community of schools within an area in their discussions with local authorities.
	The noble Baroness, Lady Walmsley, said that turkeys do not vote for Christmas and that schools would not be prepared to see more funding retained centrally for services which take away from their budgets. In my experience of talking to head teachers and local authorities about these issues, in this case the turkeys are quite intelligent. They will not vote for self-mutilation, let alone extinction, and nor would one expect them to do so. However, they recognise that well-planned and properly funded central services are important, especially in the area she mentioned—that of excluded pupils and those whose needs are not adequately being met within schools.
	I happen to agree with her strongly that we need to provide much better support, including if necessary organised support at local authority level if not at the level of the school or group of schools, for pupils who are temporarily excluded from school well before we reach the current statutory requirement, which is that they are provided for after 15 days of exclusion. That is an incredibly long time for a pupil to be out of school with no properly organised provision. We announced in the White Paper that we would reduce that 15-day period to five days, which I assume the noble Baroness will support. That will have to be funded and we will ensure that provision is made for it. But where schools want to come together with their local authorities to make provision for less than five days, there is nothing whatever to stop them doing so. It is my belief that school forums provide much better discussion mechanisms between schools and will facilitate that, particularly in conjunction with the other important changes we have made. Those include the requirement that all schools should agree a proper protocol for the treatment of and provision for pupils who have been excluded so that all schools feel that they have a real responsibility for providing for such pupils; not, as has often been the case in the past, that a small minority of schools end up picking up these pupils once they have been excluded from other schools.
	So, taking all these factors into account, I do not believe that the incentives are all one way. With much-increased accountability requirements on schools for what happens to their pupils after they have been excluded; with a much more even spread of hard-to-place pupils across schools; and with much higher public expectations of what should be provided for excluded pupils, I believe that in that area as an example, we shall see greater collaboration between schools and a willingness to pool budgets to provide better for pupils than in the past.
	I hope that that deals with the main issues. A number of technical issues were also raised. I shall get back to the noble Baroness on music provision, which is as dear to my heart as to hers. As to prudential borrowing, I am assured that, despite the changes to the wording of the regulations, there is no change whatever to the prudential borrowing regime from that which applied before. As to pupils who leave school during the year and how this is dealt with, I am told that there is no change whatever in the treatment of excluded pupils in this respect; it remains a fundamental principle that funding follows the pupils.
	In conclusion, I simply reiterate the point on which I started. These regulations are intended to enshrine the Government's commitment to multi-year budgets for schools; to set in place arrangements that will make it possible for those budgets to be delivered to schools; to give schools further stability in their budgetary arrangements; and to strengthen the role of schools forums in representing schools collectively in their discussions with local authorities on these important financial matters. On that basis, I commend the regulations to the House.